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Case: 15-40238

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Date Filed: 05/26/2015

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT
United States Court of Appeals
__________

No. 15-40238
__________

Fifth Circuit

FILED
May 26, 2015
Lyle W. Cayce
Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA;


STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS;
STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA;
STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA;
STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN;
PAUL R. LEPAGE, Governor, State of Maine;
PATRICK L. MCCRORY, Governor, State of North Carolina;
C. L. BUTCH OTTER, Governor, State of Idaho;
PHIL BRYANT, Governor, State of Mississippi;
STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA;
STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;
ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA;
STATE OF TENNESSEE,
PlaintiffsAppellees,
versus
UNITED STATES OF AMERICA;
JEH CHARLES JOHNSON, Secretary, Department of Homeland Security;
R. GIL KERLIKOWSKE,
Commissioner of U.S. Customs and Border Protection;
RONALD D. VITIELLO,
Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection;
SARAH R. SALDANA,
Director of U.S. Immigration and Customs Enforcement;
LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services,
DefendantsAppellants.
_______________________
Appeal from the United States District Court
for the Southern District of Texas
_______________________

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Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Twenty-six states (the states) are challenging the governments 1
Deferred Action for Parents of Americans and Lawful Permanent Residents
program (DAPA) as violative of the Administrative Procedure Act (APA)
and the Take Care Clause of the Constitution. The district court determined
that the states are likely to succeed on their procedural APA claim, so it temporarily enjoined implementation of the program. Texas v. United States, Civ.
No. B-14-254, 2015 WL 648579 (S.D. Tex. Feb. 16, 2015). The United States
appealed the preliminary injunction and moved for a stay of the injunction
pending resolution of the merits of that appeal. Because the government is
unlikely to succeed on the merits of its appeal of the injunction, we deny the
motion for stay and the request to narrow the scope of the injunction.
I.
In 2012, then-Department of Homeland Security (DHS) Secretary
Janet Napolitano announced the Deferred Action for Childhood Arrivals program (DACA), setting forth how officers should exercise prosecutorial discretion before enforcing immigration laws against certain young people. 2
She instructed agency heads that five criteria should be satisfied before an
individual is considered for an exercise of prosecutorial discretion 3 but that

This opinion refers to the defendants collectively as the United States or the government unless otherwise indicated.
1

Memorandum from Janet Napolitano, Secy, Dept of Homeland Sec., to David Aguilar, Acting Commr, U.S. Customs and Border Prot., et al., at 1 (June 15, 2012) (the DACA
Memo),
available
at
http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorialdiscretion-individuals-who-came-to-us-as-children.pdf.
2

Id. (stating that the individual may be considered if he [1] came to the United States
under the age of sixteen; [2] has continuously resided in the United States for a [sic] least
five years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is
3

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requests for relief . . . are to be decided on a case by case basis. 4 For individuals who are granted deferred action . . . [U.S. Citizenship and Immigration
Services (USCIS)] shall accept applications to determine whether these individuals qualify for work authorization, but the DACA Memo purported to
confer[] no substantive right, immigration status or pathway to citizenship. 5
Of the at least 1.2 million persons who qualify for DACA, approximately
636,000 have been accepted through 2014. 6
In November 2014, DHS Secretary Jeh Johnson instructed the same
agencies to expand DACA in three areas. 7

He also direct[ed] USCIS to

establish a process, similar to DACA, known as DAPA. He set forth six criteria for exercising prosecutorial discretion through the use of deferred action,
on a case-by-case basis. 8 Although [d]eferred action does not confer any form

currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the [military]; [4] has not been
convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor
offenses, or otherwise poses a threat to national security or public safety; and [5] is not above
the age of thirty).
4

Id. at 2.

Id. at 3.

See Texas, 2015 WL 648579, at *4.

Memorandum from Jeh Johnson, Secy, Dept of Homeland Sec., to Leon Rodriguez,
Dir., U.S. Citizenship and Immigration Servs., et al., at 34 (Nov. 20, 2014) (the DAPA
Memo), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_
deferred_action.pdf. First, the age restriction exclud[ing] those who were older than 31 on
the date of the [DACA] announcement . . . will no longer apply. Id. at 3. Second, [t]he
period for which DACA and the accompanying employment authorization is granted will be
extended to three-year increments, rather than the current two-year increments. Id. Third,
the eligibility cut-off date by which a DACA applicant must have been in the United States
should be adjusted from June 15, 2007 to January 1, 2010. Id. at 4. The district court
enjoined implementation of those expansions, and they are included in the term DAPA in
this opinion.
7

Id. at 4 (stating that individuals may be considered if they [1] have, on [November
20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident; [2] have
continuously resided in the United States since before January 1, 2010; [3] are physically
present in the United States on [November 20, 2014], and at the time of making a request
8

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of legal status in this country, much less citizenship[,] it [does] mean[] that, for
a specified period of time, an individual is permitted to be lawfully present in
the United States. 9
That designation makes aliens who were not otherwise qualified for most
federal public benefits eligible for social security retirement benefits, social
security disability benefits, [and] health insurance under Part A of the Medicare program. 10 Further, [e]ach person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work
authorization for the [renewable three-year] period of deferred action. 11 An
alien with work authorization may obtain a Social Security Number; accrue
quarters of covered employment; and correct wage records to add prior covered employment within approximately three years of the year in which the
wages were earned or in limited circumstances thereafter. 12 The district court
for consideration of deferred action with USCIS; [4] have no lawful status on [November 20,
2014]; [5] are not an enforcement priority as reflected in the November 20, 2014 Policies for
the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
[6] present no other factors that, in the exercise of discretion, makes the grant of deferred
action inappropriate.).
Id. at 2 (emphasis added). As the United States admits in its opening brief at 45
46, lawful presence, unlike legal status, is not an enforceable right to remain in the United
States and can be revoked at any time. But lawful presence does have significant legal
consequences, as we will explain.
9

Brief for the United States at 4849 (citing 8 U.S.C. 1611(b)(2)(3)). With limited
exceptions, an alien who is not a qualified alien . . . is not eligible for any Federal public
benefit, 1611(a), but that prohibition does not apply to any benefit payable under title II
of the Social Security Act [42 U.S.C. 401 et seq.] to an alien who is lawfully present in the
United States as determined by the Attorney General, 1611(b)(2), or to any benefit payable under title XVIII of the Social Security Act (relating to the medicare program) [42 U.S.C.
1395 et seq.] to an alien who is lawfully present in the United States as determined by the
Attorney General and, with respect to benefits payable under part A of such title [42 U.S.C.
1395c et seq.], who was authorized to be employed with respect to any wages attributable
to employment which are counted for purposes of eligibility for such benefits, 1611(b)(3)
(alterations in original).
10

11

DAPA Memo, supra note 7, at 4.

12

Brief of the United States at 49 (citations omitted) (citing 42 U.S.C. 405(c)(1)(B),

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determined that DAPA recipients would be eligible for earned income tax
credits once they received a Social Security number. 13 Texas maintains that
DAPA recipients become eligible for drivers licenses and unemployment benefits. 14 Of the approximately 11.3 million illegal aliens 15 in the United States,
4.3 million are eligible for DAPA. Texas, 2015 WL 648579, at *7 & n.11, *15.
The states sued to prevent implementation of the program. First, they
claimed that DAPA is procedurally unlawful under the APA because it is a
substantive rule that is required to undergo notice and comment, but DHS had

(4), (5)(A)(J); 8 C.F.R. 1.3(a)(4)(vi); 20 C.F.R. 422.104(a)(2), 422.105(a)).


Texas, 2015 WL 648579, at *44 n.64; see also 26 U.S.C. 32(c)(1)(E), (m) (stating
that eligibility for earned income tax credit is limited to individuals with Social Security
numbers); 20 C.F.R. 422.104(a)(2), 422.107(a), (e)(1).
13

See TEX. TRANSP. CODE 521.142(a) (An applicant who is not a citizen of the United
States must present . . . documentation issued by the appropriate United States agency that
authorizes the applicant to be in the United States before the applicant may be issued a
drivers license.); TEX. LAB. CODE 207.043(a)(2) (Benefits are not payable based on services
performed by an alien unless the alien . . . was lawfully present for purposes of performing
the services . . . .); see also 26 U.S.C. 3304(a)(14)(A) (approval of state laws making compensation payable to aliens who are lawfully present for purposes of performing such services).
14

There is some confusionnot necessarily in this case but generallyregarding the


proper term for non-citizens who are in the United States unlawfully. The leading legal lexicographer offers the following compelling explanation:
15

The usual and preferable term in [American English] is illegal alien. The other
forms have arisen as needless euphemisms, and should be avoided as neargobbledygook. The problem with undocumented is that it is intended to mean, by
those who use it in this phrase, not having the requisite documents to enter or stay
in a country legally. But the word strongly suggests unaccounted for to those
unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning.
More than one writer has argued in favor of undocumented alien . . . [to] avoid[ ]
the implication that ones unauthorized presence in the United States is a crime
. . . . But that statement is only equivocally correct: although illegal aliens presence
in the country is no crime, their entry into the country is. . . . Moreover, it is wrong
to equate illegality with criminality, since many illegal acts are not criminal. Illegal
alien is not an opprobrious epithet: it describes one present in a country in violation
of the immigration laws (hence illegal).
BRYAN A. GARNER, GARNERS DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted).

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not followed those procedures. See 5 U.S.C. 553. Second, the states asserted
that DAPA was substantively unlawful under the APA because DHS lacked
the authority to implement the program even if it did follow the correct process.
See 5 U.S.C. 706(2)(A)(C). Third, the states contended that DAPA violated
the Presidents constitutional duty to take Care that the Laws be faithfully
executed. U.S. CONST. art. II, 3.
The district court held that Texas had standing because it would be
required to issue drivers licenses to DAPA beneficiaries, and the costs of doing
so would constitute a cognizable injury. Texas, 2015 WL 648579, at *1117.
Alternatively, the court held that Texas had standing based on a theory it
called abdication standing, under which a state has standing if the government has exclusive authority over a particular policy area but declines to act.
Id. at *2834. 16 The court entered the preliminary injunction after concluding
that Texas had shown a substantial likelihood of success on its claim that
DAPAs implementation would violate the APAs notice-and-comment requirements. Id. at *62. The court did not address[] Plaintiffs likelihood of success
on their substantive APA claim or their constitutional claims under the Take
Care Clause/separation of powers doctrine. Id. at *61. The governments
motion for a stay pending appeal is based on its insistence that the states do
not have standing or a right to judicial review under the APA and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The
government also urges that the injunctions nationwide scope is an abuse of
discretion. 17

The court considered but ultimately did not rely on two other theories. The first
was that the states could sue as parens patriae on behalf of citizens injured by economic
competition from DAPA beneficiaries. Texas, 2015 WL 648579, at *1820. The second was
that, in light of Massachusetts v. EPA, 549 U.S. 497 (2007), the states could sue based on the
losses they suffer from illegal immigration generally. Texas, 2015 WL 648579, at *2128.
17 The issues in this case were not resolved by Crane v. Johnson, 783 F.3d 244, 247
16

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II.
We consider four factors in deciding whether to grant a stay pending
appeal: (1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest
lies. 18 To succeed on the merits, the government must show that the district
court abused its discretion by entering a preliminary injunction. 19 A decision
grounded in erroneous legal principles is reviewed de novo, and findings of
fact are reviewed for clear error. 20 A stay is not a matter of right, even if
irreparable injury might otherwise result to the appellant. 21
III.
We begin by deciding whether the government has made a strong
showing that it is likely to succeed on the merits of its claim that the states

(5th Cir. 2015), which held that neither the [Immigration and Customs Enforcement] Agents
nor the State of Mississippi has demonstrated the concrete and particularized injury required
to give them standing to challenge DACA. Mississippi lacked standing because it failed to
allege facts indicating that its costs had increased or would increase as a result of DACA. Id.
at 252. The agents lacked standing because, inter alia, they had not alleged a sufficient
factual basis for their claim that an employment action against them was certainly impending if they exercise[d] [their] discretion to detain an illegal alien. Id. at 254. That conclusion was informed by the express delegation of discretion on the face of the DACA Memo and
the fact that no sanctions or warnings had yet been issued. Id. at 25455. We expressly
declined to address the drivers license theory, id. at 252 n.34, and did not hold that deferred
action under DACA was an exercise of prosecutorial discretion or that the criteria were not
binding, id. at 25455.
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406,
410 (5th Cir. 2013) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)) (internal quotation
marks omitted).
18

19

Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789

20

Id. at 418 (quoting Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir. 2011)).

21

Planned Parenthood, 734 F.3d at 410 (quoting Nken, 556 U.S. at 427).

(2014).

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lack standing. It has not done so. We reach only the district courts first basis
for standingthe drivers license rationalebecause it is dispositive. 22
The states have the burden of establishing that at least one of them has
Article III standing. 23 First, they must assert an injury that is concrete, particularized, and actual or imminent. 24 [T]hreatened injury must be certainly
impending to constitute injury in fact, and . . . [a]llegations of possible future
injury are not sufficient. 25 Second, the injury must be fairly traceable to the
challenged action. Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at

The United States cites several cases for the proposition that DAPA is not justiciable. None of them resolved the question at issue here, so we consider them only to the extent
that they are relevant to our analysis of the standing requirements. See Arizona v. United
States, 132 S. Ct. 2492, 2497 (2012) (where standing was not at issue); Heckler v. Chaney,
470 U.S. 821, 823 (1985) (addressing availability of judicial review under APA but not standing); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886 (1984) (where standing was not at issue);
Plyler v. Doe, 457 U.S. 202, 205 (1982) (same); Fiallo v. Bell, 430 U.S. 787, 788 (1977) (same);
Mathews v. Diaz, 426 U.S. 67, 69 (1976) (same); Linda R.S. v. Richard D., 410 U.S. 614,
passim (1973) (addressing standing in a different context); Henderson v. Stalder, 287 F.3d
374, passim (5th Cir. 2002) (same); Texas v. United States, 106 F.3d 661, 664 n.2 (5th Cir.
1997) (assuming but not deciding that Texas had standing to seek payment from government
for expenses associated with illegal immigration); United States v. Cox, 342 F.2d 167, 170
(5th Cir. 1965) (en banc) (where standing was not at issue).
22

See Clapper v. Amnesty Intl USA, 133 S. Ct. 1138, 1148 (2013) (The party invoking
federal jurisdiction bears the burden of establishing standing . . . . (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992))); Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47, 52 n.2 (2006) ([T]he presence of one party with standing is sufficient
to satisfy Article IIIs case-or-controversy requirement.). The decision in Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), casts doubt on whether
the limitations often described as prudential standing requirements should be considered as
part of the standing inquiry. See id. at 138688; see also Superior MRI Servs., Inc. v. Alliance
Healthcare Servs., Inc., 778 F.3d 502, 50506 (5th Cir. 2015) (discussing Lexmarks impact).
We need not address that, because there is no suggestion that the states are attempting to
assert a third partys rights or to seek adjudication of a generalized grievance, and we must
apply the zone-of-interests test to determine whether judicial review is available under the
APA. See generally Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 47475 (1982) (listing prudential-standing requirements).
23

Amnesty Intl, 133 S. Ct. at 1147 (quoting Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139, 149 (2010)).
24

25

(1990)).

Id. (second alteration in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158

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149). The states may establish standing based on costs they incur as a reasonable reaction to a risk of harm only if that harm is certainly impending. See
id. at 1151. Third, the injury must be redressable by a favorable ruling. Id.
at 1147 (quoting Monsanto, 561 U.S. at 149). When a litigant is vested with
a procedural right, that litigant has standing if there is some possibility that
the requested relief will prompt the injury-causing party to reconsider the
decision that allegedly harmed the litigant. Massachusetts, 549 U.S. at 518.
A.
The first requirement is likely satisfied by Texass proof of the costs of
issuing drivers licenses to DAPA beneficiaries. An applicant who is not a
citizen of the United States must present . . . documentation issued by the
appropriate United States agency that authorizes the applicant to be in the
United States before the applicant may be issued a drivers license. TEX.
TRANSP. CODE 521.142(a). Documentation confirming lawful presence pursuant to DAPA would qualify. 26 The district court found that Texas would lose
at least $130.89 on each license it issues to a DAPA beneficiary, 27 and the
United States does not dispute that calculation on appeal. It is well established

See TEX. DEPT OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013), available
at
https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf
(listing acceptable document for [p]erson granted deferred action as [i]mmigration documentation with an alien number or I-94 number); supra text accompanying note 9.
26

Texas, 2015 WL 648579, at *11. The court noted that some of those costs are attributable to Texass participation in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119
Stat. 302 (codified as amended in scattered sections of 8 and 49 U.S.C.). Id. To comply with
that law, a state must, inter alia, use the federal Systematic Alien Verification for Entitlements system to verify an applicants immigration status. 6 C.F.R. 37.13(b)(1). The court
found that the average fee Texas pays to use that system is $0.75 per applicant. Although
states are not required to participate in the REAL ID Act, nonparticipating states licenses
are not valid for access to certain federal facilities and eventually will not be valid for commercial air travel without a secondary form of identification. REAL ID Enforcement in Brief,
U.S. DEPARTMENT OF HOMELAND SECURITY (Mar. 30, 2015), http://www.dhs.gov/real-idenforcement-brief.
27

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that a financial loss generally constitutes an injury, 28 so Texas is likely to meet
its burden.
The government attacks that conclusion on two grounds. First, it claims
that Texas will be required neither to issue licenses nor to subsidize them.
Texas responds that it will have to do so in light of Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), which held that DACA beneficiaries were likely to succeed on their equal-protection challenge to Arizonas
policy of issuing licenses to some noncitizens but not to them, id. at 1067, and
suggested but did not decide that the policy was preempted, id. at 1063.
Although Arizona DREAM Act supports Texass position that it cannot legally
deny licenses to DAPA beneficiaries, it is not dispositive. Even if we were
bound by the decision of another circuit, that court said nothing about subsidizing licenses, and Texas could avoid financial injury by raising its application
fees to cover the full cost of issuing and administering a license.
But that does not resolve the matter. The flaw in the governments
reasoning is that Texass forced choice between incurring costs and changing
its fee structure is itself an injury: A plaintiff suffers an injury even if it can
avoid that injury by incurring other costs. 29 And being pressured to change
state law constitutes an injury.
[S]tates have a sovereign interest in the power to create and enforce a
legal code. 30 Based on that interest, we held that Texas had standing to
See, e.g., Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 47374 (5th Cir.
2013); Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 699 (5th Cir. 2011).
28

See Texas v. United States, 497 F.3d 491, 497 (5th Cir. 2007) (Texass only alternative to participating in this allegedly invalid process is to forfeit its sole opportunity to
comment upon Kickapoo gaming regulations, a forced choice that is itself sufficient to support
standing.).
29

Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
30

10

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challenge the FCCs assertion of authority over an aspect of telecommunications regulation that the state believed it controlled 31; three other circuits held
that the preemption of an existing state law constitutes an injury 32; and the
Sixth Circuit held that making the enforcement of an existing state law more
difficult qualifies. 33 Reviewing that caselaw, the Fourth Circuit explained that
a state has standing based on a conflict between federal and state law if the
state statute at issue regulate[s] behavior or provide[s] for the administration
of a state program, Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269
(4th Cir. 2011), but not if it simply purports to immunize [state] citizens from
federal law, id. at 270.
That well-established caselaw is dispositive because if pressure to
change state law in some substantial way were not injury, states would have
no standing to challenge bona fide harms because they could offset most financial losses by raising taxes or fees. Texass forced choice between incurring
costs and changing its laws is an injury because those laws exist for the administration of a state program, not to challenge federal law, and Texas did not
enact them merely to create standing. 34

31

Id.

See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir.
2008); Alaska v. U.S. Dept of Transp., 868 F.2d 441, 44344 (D.C. Cir. 1989); Ohio ex rel.
Celebrezze v. U.S. Dept of Transp., 766 F.2d 228, 23233 (6th Cir. 1985); cf. Diamond v.
Charles, 476 U.S. 54, 62 (1986) (noting in dictum that a State has standing to defend the
constitutionality of its statute).
32

Celebrezze, 766 F.2d at 23233; cf. Maine v. Taylor, 477 U.S. 131, 137 (1986) ([A]
State clearly has a legitimate interest in the continued enforceability of its own statutes.).
33

The government relies on Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per
curiam), for the proposition that Texass injury is self-inflicted. There, several states alleged
that other states had unconstitutionally taxed nonresidents incomes. Id. at 66163. The
plaintiffs said the challenged practices had caused them to lose tax revenue. Id. at 663. The
Court held that the plaintiffs injuries were self-inflicted because they were caused by the
plaintiffs decisions to give their residents credits for taxes paid to other states, so there was
no cognizable injury. See id. at 664. The Court later held, however, that Wyoming had
34

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Second, the government urges that Texas will suffer no injury, because
the costs of issuing licenses will be outweighed by countervailing economic benefits, including increased tax revenue, decreased reliance on state-subsidized
health care, better financial support for DAPA beneficiaries children,
increased revenue from vehicle-registration fees, and decreased auto insurance
costs. All that may be true, but those benefits are not properly weighed in
evaluating standing here. We have addressed the question of offsetting benefits only to a limited extent, holding that individuals lacked taxpayer standing
to challenge Louisianas issuance of pro-life license plates in part because the
extra fees paid by drivers who purchased the plates could have covered the
expenses associated with offering them and distributing the funds they raised.
Henderson, 287 F.3d at 37981.
That approach is appropriate, if at all, where the costs and benefits are
of the same type and arise from the same transaction because the plaintiff has
suffered no real injury. By contrast, other circuits have declined to consider
offsetting benefits of different types or from different transactions. 35 Our sister

standing to challenge an Oklahoma statute that decreased Wyomings severance-tax revenue


by requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. See
Wyoming v. Oklahoma, 502 U.S. 437, 44750 (1992).
Wyoming controls here. The plaintiffs in Pennsylvania chose to base their tax credits
on other states tax policies; they could have used other methods to accomplish a similar
result, such as basing the credits on residents out-of-state incomes, rather than taxes actually paid to other states. By contrast, Wyoming did nothing to tie its severance tax to Oklahoma law. Like Wyoming, Texas has few options to avoid being affected by what it believes
are unlawful changes to federal immigration policies: It must rely on federal immigration
classifications if it seeks to issue licenses only to those lawfully present in the United States.
The government acknowledges this in its motion for stay, noting that [s]tates may choose to
issue drivers licenses to deferred action recipients or not, as long as they base eligibility on
federal immigration classifications rather than creating new state-law classifications of
aliens. Because Texas does not have the level of choice the plaintiffs in Pennsylvania
enjoyed, its injury is not self-inflicted.
See, e.g., NCAA v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013); L.A. Haven
Hospice, Inc. v. Sebelius, 638 F.3d 644, 65659 (9th Cir. 2011); Ross v. Bank of Am., N.A.
35

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circuits approach makes sense in that context because attempting to balance
all costs and benefits associated with a challenged policy would leave plaintiffs
without standing to challenge legitimate injuries, given that defendants could
point to unrelated benefits, improperly shifting to the plaintiffs the burden of
showing that the costs outweigh them.
Most of the benefits the government citesincreased tax revenue,
decreased reliance on state-subsidized health care, and better financial support for DAPA beneficiaries childrenare wholly separate from the costs of
issuing licenses. The other benefits it identifiesincreased revenue from vehicle fees and decreased auto insurance costsare more closely associated with
the costs of issuing licenses, but the caselaw illustrates that they are still too
far removed to be applied as offsets.
For example, in NCAA, 730 F.3d at 22223, the Third Circuit held that
sports leagues had standing to challenge New Jerseys plan to license sports
betting even though the damage to the leagues reputations could have been
outweighed by increased interest in watching sports. Likewise, in Markva, 317
F.3d at 55758, the Sixth Circuit held that grandparents who cared for dependent children had standing to challenge a requirement that they spend more
of their own money before obtaining Medicaid benefits, as compared to
similarly situated parents, even though the grandparents arguably received
more of other types of welfare benefits. Here, as in those cases and others, 36
(USA), 524 F.3d 217, 222 (2d Cir. 2008); Markva v. Haveman, 317 F.3d 547, 55758 (6th Cir.
2003); see also 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
3531.4 (3d ed. 2015) (Once injury is shown, no attempt is made to ask whether the injury
is outweighed by benefits the plaintiff has enjoyed from the relationship with the defendant.
Standing is recognized to complain that some particular aspect of the relationship is unlawful
and has caused injury.).
See, e.g., L.A. Haven Hospice, 638 F.3d at 65657 (holding that hospice had standing
to challenge regulation that allegedly increased its liability even though regulation may have
also saved it money); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 57075 (6th Cir. 2005)
36

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the benefits the government cites concern the same subject matter as the costs
but do not arise from the same transaction, so we cannot consider them.
Accordingly, Texas has likely asserted an injury that is concrete, particularized, and actual or imminent. Clapper, 133 S. Ct. at 1147 (quoting Monsanto,
561 U.S. at 149).
B.
Texas is likely to satisfy the second requirement by showing that its
injury is fairly traceable to the challenged action. Id. (quoting Monsanto, 561
U.S. at 149). As we have explained, 37 it is undeniable that DAPA would enable
beneficiaries to apply for licenses, but the United States asserts that DAPAs
incidental consequences are not cognizable injuries because the causal link is
too attenuated. Massachusetts v. EPA establishes, much to the contrary, that
Texass injury suffices.
In Massachusetts, 549 U.S. at 526, the Court held that the erosion of the
states shoreline gave it standing to challenge the EPAs decision not to regulate greenhouse-gas emissions from new motor vehicles. The Court noted that
the Clean Air Act authorizes judicial review of the EPAs denial of a rulemaking petition, a fact that is of critical importance to the standing inquiry
[because] Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed
before. Id. at 516 (quoting Defenders of Wildlife, 504 U.S. at 580). Moreover,
States are not normal litigants for the purposes of invoking federal jurisdiction, id. at 518, because they surrendered some of the sovereign powers necessary to protect themselves from harms such as climate change when they
(holding that patient had standing based on increased risk from defective medical device even
though his device had not malfunctioned and had benefited him).
37

See supra note 26 and accompanying text.

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joined the union, id. at 519. That point was especially relevant because the
EPAs inaction had caused the erosion of Massachusettss sovereign territory.
See id. Given that procedural right and Massachusettss stake in protecting
its quasi-sovereign interests, the Commonwealth [was] entitled to special solicitude in [the] standing analysis. Id. at 520.
This case implicates the same concerns. Texas is exercising a procedural
right: Just as the Clean Air Act (CAA) authorizes judicial review of final
action taken[] by the Administrator, 42 U.S.C. 7607(b)(1), the APA authorizes judicial review of final agency action for which there is no other adequate
remedy in a court, 5 U.S.C. 704. 38

And Texas is protecting its quasi-

sovereign interest in not being forced to choose between incurring costs and
changing its drivers license regime. 39 Therefore, it is entitled to the same

The fact that the CAAs review provision is more specific than the APAs is relevant
to, but not dispositive of, our special solicitude analysis. The formers specificity may suggest that Congress meant for plaintiffs to have standing to challenge procedural violations of
the CAA even if they would not have standing to challenge some analogous violations of the
APA. That said, we routinely hold that plaintiffs have standing to challenge failures to comply with the APAs notice-and-comment requirements, see, e.g., United States v. Johnson, 632
F.3d 912, 92027 (5th Cir. 2011), and the Tenth Circuit treats the APAs review provision as
sufficient to entitle a state to special solicitude, at least in some circumstances, see New
Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 694, 696 n.13 (10th Cir.
2009) (holding that the state was entitled to special solicitude where one of its claims was
based on APA); Crank, 539 F.3d at 124142 (same where only claim was based on APA).
Moreover, Texass interest in not being pressured to change its law is more directly related
to its sovereignty than was Massachusettss interest in preventing the erosion of its shoreline.
See supra notes 3033 and accompanying text. Because of Texass substantial interest, it is
entitled to special solicitude here even though a state may not always be entitled to that
presumption when seeking review under the APAan issue we need not decide.
38

See Crank, 539 F.3d at 124142 (reasoning that the state was entitled to special
solicitude where its asserted injury was interference with enforcement of state law); Tex.
Office of Pub. Util. Counsel, 183 F.3d at 449 ([S]tates have a sovereign interest in the power
to create and enforce a legal code. (quoting Snapp, 458 U.S. at 601)); cf. Richardson, 565 F.3d
at 696 n.13 (state was entitled to special solicitude where its asserted injury was both harm
to its land and financial loss).
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special solicitude as was Massachusetts. 40
The analysis of the fairly traceable requirement in Massachusetts is
also highly relevant. The main causation issue was whether the connection
between the EPAs inaction and the states injury was too remote. See Massachusetts, 549 U.S. at 523. The EPA maintained that the injury was not cognizable, because regulating greenhouse-gas emissions from new motor vehicles
would have done little to prevent the erosion of the states land. Id. at 52324.
The Court rejected that theory, explaining that the fact [t]hat a first step
might be tentative does not by itself support the notion that federal courts lack
jurisdiction to determine whether that step conforms to law and that reducing domestic automobile emissions [was] hardly a tentative step, in any event.
Id. at 524.
The answer here is the same. Although Texas would not be directly regulated by DAPA, the program would have a direct and predictable effect on the
states drivers license regime, and the impact would be significant because at
least 500,000 potential beneficiaries live in the state. Alternatively, Texas
could change its law, but being pressured to do so is itself a substantial injury,
as already discussed.
By contrast, where the Supreme Court has found that an injury is not
fairly traceable, the intervening, independent act of a third party has been a
necessary condition of the harms occurrence, or the challenged action has
played a minor role. For instance, the plaintiffs in Clapper lacked standing to
challenge a section of the Foreign Intelligence Surveillance Act that they

This panel heard over two hours of oral argument on this motion for stay. Government counsel was specifically asked to explain how the United States avoids the special
solicitude language in its effort to defeat standing. Counsel acknowledged that he had no
explanation.
40

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alleged would lead to the monitoring of their communications. Clapper, 133 S.
Ct. at 1155. For the asserted injury to occur, the Attorney General and the
Director of National Intelligence would have had to authorize the collection of
communications to which the plaintiffs were a party, the Foreign Intelligence
Surveillance Court would have had to approve the surveillance, and the government would have had to succeed in intercepting the communications. Id.
at 1148. Emphasizing its usual reluctance to endorse standing theories that
rest on speculation about the decisions of independent actors, the Court held
that the plaintiffs had not satisfied the fairly traceable requirement. 41
Separately, the Court rejected the theory that a market participant is injured
for Article III purposes whenever a competitor benefits from something allegedly unlawfulwhether a trademark, the awarding of a contract, a landlordtenant arrangement, or so on. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731
(2013). Myriad factors determine market shares, so it is difficult to trace a
competitive injury to a particular decision benefiting a competitor. 42
Texass claim regarding drivers licenses suffers from neither of those
deficiencies. The only intervening act of a third party is the beneficiaries

Clapper, 133 S. Ct. at 1150; see also, e.g., Ariz. Christian Sch. Tuition Org. v. Winn,
131 S. Ct. 1436, 144748 (2011) (stating that taxpayers lacked standing to challenge tax
credits that indirectly benefited religious schools in part because private individuals decided
whether to use credits for religious schools); Whitmore, 495 U.S. at 15657 (concluding that
death-row inmate lacked standing to challenge another inmates death sentence in part
because it was unclear whether courts would rule favorably).
41

See also, e.g., McConnell v. FEC, 540 U.S. 93, 228 (2003) (deciding that candidates
lacked standing to challenge increased hard-money limits because their inability to compete
was also caused by their decisions not to accept large contributions), overruled on other
grounds by Citizens United v. FEC, 558 U.S. 310 (2010); Allen v. Wright, 468 U.S. 737, 756
59 (1984) (holding that parents lacked standing to challenge tax exemptions for racially discriminatory private schools in part because effect on their childrens ability to receive education in racially integrated public school depended on whether withdrawal of exemption would
cause private schools to change policies and on the number of students who would transfer
to public schools if they did so), abrogated on other grounds by Lexmark, 134 S. Ct. at 1388.
42

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decisions to apply for licenses, but it is hardly speculative that they will do so
driving is a practical necessity in most of Texas, especially to get and hold a
job, so many beneficiaries will be eager to obtain licenses. Further, DAPA is
the only substantial cause of Texass injury. In short, given the special solicitude that the Supreme Court directs us to afford to Texas, the parallels
between this case and Massachusetts, and the differences between this case
and those in which the Supreme Court has not found standing, the states are
likely to satisfy the fairly traceable requirement.
C.
The third requirement, that the injury be redressable by a favorable
ruling, Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at 149), is
easily met here. Enjoining the implementation of DAPA until it undergoes
notice and comment could prompt DHS to reconsider its decision, which is all
a litigant must show when asserting a procedural right. See Massachusetts,
549 U.S. at 518.
Thus, the government has not made a strong showing that it is likely to
succeed on the merits of its notion that the states lack standing. At least one
stateTexasis likely to satisfy all three requirements, so the governments
challenge to standing is without merit.
IV.
In addition to having standing, the states must seek to protect interests
that are arguably within the zone of interests to be protected or regulated by
the statute . . . in question. 43 Under the generous review provisions of the

Clarke v. Sec. Indus. Assn, 479 U.S. 388, 396 (1987) (quoting Assn of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).
43

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APA, 44 that test is not meant to be especially demanding; in particular, there
need be no indication of congressional purpose to benefit the would-be plaintiff. 45 We apply the test in keeping with Congresss evident intent when
enacting the APA to make agency action presumptively reviewable, and the
benefit of any doubt goes to the plaintiff. 46 The states would fail the test only
if their interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress
intended to permit the suit. 47
The government has not made a strong showing that the interests the
states seek to protect fall outside the zone of interests of the Immigration and
Nationality Act (INA). The pervasiveness of federal regulation does not
diminish the importance of immigration policy to the States, which bear[]
many of the consequences of unlawful immigration. Arizona v. United States,
132 S. Ct. 2492, 2500 (2012). In recognition of that fact, Congress permits
states to deny many benefits to illegal aliens. 48 Knowing that they may not
enforce laws that conflict with federal law, see, e.g., Arizona, 132 S. Ct. at 2510,
the states seek only to be heard in the formulation of immigration policy before
it imposes substantial costs on them. Consultation between federal and state
officials is an important feature of the immigration system, id. at 2508, and

44

Id. at 400 n.16 (quoting Data Processing, 397 U.S. at 156).

45

Id. at 399400 (footnote omitted).

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct.


2199, 2210 (2012) (quoting Sec. Indus. Assn, 479 U.S. at 399400).
46

47

Id. (quoting Sec. Indus. Assn, 479 U.S. at 399).

See 8 U.S.C. 1621 (identifying aliens ineligible for any State or local public benefit, 1621(a) and noting that [a] State may provide that an alien who is not lawfully present
in the United States is eligible for any State or local public benefit for which such alien would
otherwise be ineligible, 1621(d)); United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir.
2012) (noting that drivers licenses fall within definition of public benefit in 1621(c)).
48

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the notice-and-comment process, which is designed to ensure that affected
parties have an opportunity to participate in and influence agency decision
making, 49 facilitates such communication. The states easily satisfy the zoneof-interests test.
V.
In deciding whether the United States has made a strong showing that
judicial review is precluded, we are mindful that [a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial review
thereof. 50 But judicial review is unavailable to the extent that(1) statutes
preclude judicial review; or (2) agency action is committed to agency discretion
by law. 5 U.S.C. 701(a).
A.
[O]nly upon a showing of clear and convincing evidence of a contrary
legislative intent should the courts restrict access to judicial review. Block v.
Cmty. Nutrition Inst., 467 U.S. 340, 350 (1984) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). That standard is not a rigid evidentiary test
but a useful reminder . . . that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of
administrative action is controlling. Id. at 351. Whether and to what extent
a particular statute precludes judicial review is determined not only from its
express language, but also from the structure of the statutory scheme, its
objectives, its legislative history, and the nature of the administrative action

49

U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979).

5 U.S.C. 702. The government does not dispute that DAPA is a final agency
action. See Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 882 (1990).
50

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involved. Id. at 345.
The United States maintains that 8 U.S.C. 1252(g) 51 expressly prohibits judicial review, but that provision is not a sort of zipper clause that says
no judicial review in deportation cases unless this section provides judicial
review; instead, it applies only to three discrete actions that the Attorney
General may take: her decision or action to commence proceedings, adjudicate
cases, or execute removal orders. 52 It is inapplicable here because (1) the
states are not bringing a cause or claim by or on behalf of any alien, and
(2) the action does not aris[e] from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders
against any alien. 1252(g).
Nor does the governments broad and exclusive authority over immigration policy mean that review is implicitly barred. 53 The INA has numerous
specific jurisdiction-stripping provisions 54 that would be rendered superfluous

With limited exceptions, no court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against any alien under
this chapter. 8 U.S.C. 1252(g).
51

Reno v. Am.-Arab Anti-Discrimination Comm. (AAADC), 525 U.S. 471, 482 (1999)
(quoting 1252(g)).
52

Although private persons . . . have no judicially cognizable interest in procuring


enforcement of the immigration laws, Sure-Tan, 467 U.S. at 897; accord Fiallo, 430 U.S.
at 792 (emphasizing governments authority over immigration), neither the preliminary
injunction nor the notice-and-comment process requires the government to enforce the immigration laws.
53

See AAADC, 525 U.S. at 48687 (listing 8 U.S.C. 1252(a)(2)(A) (limiting review
of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring
review of denials of discretionary relief authorized by various statutory provisions), [(C)] (barring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of
asylum determinations)); see also, e.g., 8 U.S.C. 1182(a)(9)(B)(v) (barring review of waiver
of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e)
(barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review
of denial of voluntary departure).
54

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by application of an implied, overarching principle prohibiting review. 55 Such
a conclusion would be contrary to AAADC, 525 U.S. at 482, in which the Court
noted that 1252(g) does not impose a general jurisdictional limitation; and
that those who enacted IIRIRA were familiar with the normal manner of
imposing such a limitation. 56
Moreover, judicial review of an action brought by states to enforce procedural rights under the APA is consistent with the protections Congress
affords to states that decline to provide benefits to illegal aliens. As we have
explained, 57 Texas, as permitted by 1621, subsidizes drivers licenses to, inter
alia, lawfully present aliens but declines to issue them to those unlawfully present. And the state seeks to participate in notice and comment before the Secretary changes the designation of 500,000 aliens residing there in such a way
that would cause the state to incur substantial costs.
The Supreme Courts discussion of deferred action in AAADC suggests
that judicial review may be available if there is an indication that deferredaction decisions are not made on a case-by-case basis. There, a group of aliens
sought to stop deportation proceedings against them, but 1252(g) deprived
the courts of jurisdiction. AAADC, 525 U.S. at 487. Noting that 1252(g)
codified the Secretarys discretion to decline the initiation or prosecution of
various stages in the deportation process, id. at 483, the Court observed that
[p]rior to 1997, deferred-action decisions were governed by internal

See Corley v. United States, 556 U.S. 303, 314 (2009) ([A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . . (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
55

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996,


(IIRIRA), Pub. L. 104208, 110 Stat. 3009, amended the INAs provisions pertaining to
removal of aliens and enacted new judicial review provisions, codified at 8 U.S.C. 1252.
Mejia Rodriguez v. DHS, 562 F.3d 1137, 1142 n.12 (11th Cir. 2009) (per curiam).
56

57

See supra note 48 and accompanying text.

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[Immigration and Naturalization Service (INS)] guidelines which considered
[a variety of factors], id. at 484 n.8. Although those guidelines had since been
rescinded, the Court noted that there [was] no indication that the INS has
ceased making this sort of determination on a case-by-case basis. Id. The
United States has not rebutted the strong presumption of reviewability with
clear and convincing evidence that the INA precludes review. 58
B.
The Secretary does, nonetheless, have broad enforcement discretion and
maintains that deferred action under DAPAa grant of lawful presence and
subsequent eligibility for otherwise unavailable benefitsis a presumptively
unreviewable exercise of that discretion. 59 The general exception to reviewability provided by 701(a)(2) for action committed to agency discretion
remains a narrow one, but within that exception are included agency refusals
to institute investigative or enforcement proceedings, unless Congress has
indicated otherwise. 60 When, however, an agency does act to enforce, that
action itself provides a focus for judicial review, inasmuch as the agency must
have exercised its power in some manner. The action at least can be reviewed
to determine whether the agency exceeded its statutory powers. Chaney, 470
U.S. at 832.
Some features of DAPA are similar to prosecutorial discretion: DAPA

See, e.g., Gulf Restoration Network v. McCarthy, No. 13-31214, 2015 WL 1566608,
at *4 (5th Cir. Apr. 7, 2015) ([T]here is a strong presumption, subject to Congressional language, that action taken by a federal agency is reviewable in federal court. (quoting RSR
Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))).
58

See Arizona, 132 S. Ct. at 2499 (A principal feature of the removal system is the
broad discretion exercised by immigration officials. Federal officials, as an initial matter,
must decide whether it makes sense to pursue removal at all. (citation omitted)).
59

Chaney, 470 U.S. at 838 (citation omitted); see Lincoln v. Vigil, 508 U.S. 182, 190
91 (1993).
60

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amounts to the Secretarys decisionat least temporarily not to enforce the
immigration laws as to a class of what he deems to be low-priority aliens. 61 If
that were all DAPA involved, we would have a different case. DAPAs version
of deferred action, however, is more than nonenforcement: It is the affirmative
act of conferring lawful presence on a class of unlawfully present aliens. 62
Though revocable, that new designation triggers eligibility for federal 63 and
state 64 benefits that would not otherwise be available. 65
[A]lthough prosecutorial discretion is broad, it is not unfettered. 66
Declining to prosecute does not convert an act deemed unlawful by Congress
into a lawful one and confer eligibility for benefits based on that new
The preliminary injunction does not require the Secretary to deport any alien or to
alter his enforcement priorities, and the states have not challenged the priority levels he has
established. See Memorandum from Jeh Johnson, Secy, Dept of Homeland Sec., to Thomas
Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014)
(the
Prioritization
Memo),
available
at
http://www.dhs.gov/sites/default/files
/publications/14_1120_memo_prosecutorial_discretion.pdf.
61

See DAPA Memo, supra note 7, at 2; supra note 9 and accompanying text. Although
[a]s a general rule, it is not a crime for a removable alien to remain present in the United
States, it is a civil offense. Arizona, 132 S. Ct. at 2505; see 8 U.S.C. 1182(a)(9)(B)(i),
1227(a)(1)(A)(B).
62

See supra notes 10143 and accompanying text. DAPA also tolls the recipients
unlawful presence under the INAs reentry bars, which will benefit aliens who receive lawful
presence as minors because the unlawful-presence clock begins to run only at age 18. See
8 U.S.C. 1182(a)(9)(B)(iii). Tolling will not help most adult beneficiaries because one must
have continuously resided in the United States since before January 1, 2010, to be eligible
for DAPA, and therefore will likely already be subject to the reentry bar for aliens who have
been unlawfully present in the United States for one year or more. 1182(a)(9)(B)(i)(II),
(C)(i)(I).
63

64

See supra notes 14 and 26 and accompanying text.

Cf. Memorandum from James Cole, Deputy Atty Gen., to All United States
Attorneys (Aug. 29, 2013) (the Cole Memo), available at http://www.justice.gov
/iso/opa/resources/3052013829132756857467.pdf. The Cole Memo does not direct an agency
to grant any type of affirmative benefit to anyone engaged in unlawful conduct, whereas the
DAPA Memo directs an agency to grant lawful presence and provides eligibility for employment authorization and other federal and state benefits to certain illegally present aliens.
65

Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)) (internal quotation mark omitted).
66

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classification. Regardless of whether the Secretary has the authority to offer
those incentives for participation in DAPA, his doing so is not shielded from
judicial review as an act of prosecutorial discretion. 67 And as shown above, 68
neither the preliminary injunction nor compliance with the APA requires the
Secretary to prosecute deportable aliens or change his enforcement priorities.
Our conclusion is bolstered by the Supreme Courts description of
deferred action in AAADC:
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final
order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally
was known as nonpriority and is now designated as deferred action. . . .
Approval of deferred action status means that . . . no action will thereafter be taken to proceed against an apparently deportable alien, even
on grounds normally regarded as aggravated.[ 69]
Unlike the claim in AAADC, the states procedural claim does not involve a
Offering lawful presence and other benefits may ultimately help the Secretary
enforce immigration laws more efficiently because those benefits make deportable aliens
likely to self-identify, but not all inducements fall within the narrow exception for actions
committed to agency discretion. See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446
(2014) (An agency confronting resource constraints may change its own conduct, but it
cannot change the law.). As discussed in part V.C, infra, we do not interpret the INA, at
least at this early stage of the case, as conferring unreviewable discretion on the Secretary
to grant the class-based lawful presence and eligibility for benefits at issue in DAPA.
67

68

See supra note 61.

AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 C. GORDON, S. MAILMAN &
S. YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE 72.03[2][h] (1998)); accord Johns v.
Dept of Justice, 653 F.2d 884, 890 (5th Cir. 1981) (The Attorney General also determines
whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation. (footnote omitted)); see also
Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam). Those decisions do not address
the unique features of DAPAclass-wide eligibility, derived from a childs legal status, for
lawful presence and accompanying eligibility for work authorization and other benefits. See
Profls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 n.27 (5th Cir. 1995)
([T]he fact that we previously found another FDA compliance policy guide to be a policy
statement is not dispositive whether [this guide] is a policy statement.); infra note 92
(discussing factual disputes in comparison between DAPA and previous deferred-action
programs).
69

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challenge to the Secretarys decision to decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation, nor does
deferred action pursuant to DAPA mean merely that no action will thereafter
be taken to proceed against an apparently deportable alien. Under DAPA,
[d]eferred action . . . means that, for a specified period of time, an individual
is permitted to be lawfully present in the United States, 70 a change in designation that confers eligibility for federal and state benefits on a class of aliens
who would not otherwise qualify. 71 Therefore, DAPA provides a focus for judicial review, inasmuch as the agency must have exercised its power in some
manner. The action at least can be reviewed to determine whether the agency
exceeded its statutory powers. 72
C.
There is no judicial review of agency action where statutes [granting
agency discretion] are drawn in such broad terms that in a given case there is
no law to apply. 73 For example, [t]he allocation of funds from a lump-sum
appropriation, Vigil, 508 U.S. at 192, is one of those rare circumstances
where the relevant statute is drawn so that a court would have no meaningful
standard against which to judge the agencys exercise of discretion. 74 The
district court did not rule on the substantive APA claims, and we do not decide

70

DAPA Memo, supra note 7, at 2 (emphasis added).

71

See supra notes 1014 and accompanying text.

Chaney, 470 U.S. at 832. Having concluded that DAPAs version of deferred
actionat least to the extent that it confers lawful presenceis not an exercise of enforcement discretion committed to agency action, we do not reach the issue of whether the presumption against review of such discretion is rebutted. See id. at 83234; Adams v. Richardson, 480 F.2d 1159, 116162 (D.C. Cir. 1973) (en banc) (per curiam).
72

Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration in original) (quoting Overton Park, 401 U.S. at 410) (internal quotation marks omitted).
73

74

Vigil, 508 U.S. at 191 (quoting Chaney, 470 U.S. at 830).

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whether the Secretary has the authority to implement DAPA. We do note,
however, that even granting special deference, 75 the INA provisions cited by
the government for that proposition cannot reasonably be construed, at least
at this early stage of the case, to confer unreviewable discretion.
The INA expressly identifies legal designations allowing defined classes
of aliens to reside lawfully in the United States 76 and eligibility for discretionary relief allowing [aliens in deportation proceedings] to remain in the
country, 77 including narrow classes of aliens eligible for deferred action. 78 The
Act also specifies classes of aliens eligible 79 and ineligible 80 for work

Texas, 106 F.3d at 666 (Courts must give special deference to congressional and
executive branch policy choices pertaining to immigration.).
75

E.g., lawful-permanent-resident (LPR) status, see 8 U.S.C. 1101(a)(20), 1255;


nonimmigrant status, see 1101(a)(15), 1201(a)(1); refugee and asylum status,
see 1101(a)(42), 115759, 1231(b)(3); humanitarian parole, see 1182(d)(5); temporary protected status, see 1254a. Cf. 1182(a) (inadmissible aliens), 1227(a)(b) (deportable aliens).
76

Arizona, 132 S. Ct. at 2499 (citing 8 U.S.C. 1158 (asylum), 1229b (cancellation of
removal), 1229c (voluntary departure)); see also 1227(d) (administrative stay of removal for
T- and U-visa applicants (victims of human trafficking, or of various serious crimes, who
assist law enforcement)).
77

See 8 U.S.C. 1154(a)(1)(D)(i)(II), (IV) (certain petitioners for immigration status


under the Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103-322, tit. IV,
40701(a), 108 Stat. 1796, 195354); USA PATRIOT Act of 2001, Pub. L. No. 107-56, 423(b),
115 Stat. 272, 361 (immediate family members of LPRs killed by terrorism); National Defense
Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 1703(c)(d), 117 Stat. 1392,
169495 (immediate family members of LPRs killed in combat and granted posthumous citizenship); see also 8 U.S.C. 1227(d)(2) (The denial of a request for an administrative stay of
removal [for T- and U-visa applicants] shall not preclude the alien from applying for . . .
deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws . . . .).
78

E.g., 8 U.S.C. 1101(i)(2) (human-trafficking victims in lawful-temporary-resident


status pursuant to a T visa), 1105a(a) (nonimmigrant battered spouses), 1154(a)(1)(K)
(grantees of VAWA self-petitions), 1158(c)(1)(B), (d)(2) (asylum applicants and grantees),
1160(a)(4) (certain agricultural workers in lawful-temporary-resident status), 1184(c)(2)(E),
(e)(6) (spouses of L- and E-visa holders), (p)(3)(B) (certain victims of criminal activity in
lawful-temporary-resident status pursuant to a U visa), 1254a(a)(1)(B) (temporary-protectedstatus holders), 1255a(b)(3)(B) (temporary-resident-status holders).
79

80

E.g., 8 U.S.C. 1226(a)(3) (limits on work authorizations for aliens with pending

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authorization, including those eligible for work authorization and deferred
action, supra note 78. Although the Secretary is given discretion to make
immigration decisions based on humanitarian concerns, that discretion is
authorized for particular family relationships and specific forms of relief. 81
Congress has developed an intricate process for unlawfully present aliens to
reside lawfully (albeit with legal status as opposed to lawful presence) in the
United States on account of their childs citizenship. 82

Moreover, judicial

review of many decisions is expressly limited or precluded, supra note 54,


including some that are made in the Secretarys sole and unreviewable
discretion. 83
Against that background, we would expect to find an explicit delegation
of authority to implement DAPAa program that makes 4.3 million otherwise
removable aliens eligible for lawful presence, work authorization, and associated benefitsbut no such provision exists. 84

Perhaps the closest is

removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed).
See e.g., 8 U.S.C. 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for
particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissibility for smuggling by particular classes of aliens), 1229b(b)(1)(A), (D) (authorizing cancellation of removal and adjustment of status if, inter alia, the alien has been physically present
in the United States for a continuous period of not less than 10 years immediately preceding
the date of such application and removal would result in exceptional and extremely unusual
hardship to the aliens spouse, parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence (emphasis added)).
81

In general, an applicant must (i) have a child who is at least 21 years old, (ii) leave
the United States, (iii) wait 10 years, and then (iv) obtain a family-preference visa from a
United States consulate. See 8 U.S.C. 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255.
DAPA allows a parent to derive lawful presence from his or her childs LPR status, although
the INA does not contain a family-sponsorship process for parents of an LPR child. See
8 U.S.C. 1151(b)(2)(A)(i), 1152(a)(4), 1153(a).
82

83

E.g., 8 U.S.C. 1613(c)(2)(G), 1621(b)(4), 1641.

See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) ([W]e
must be guided to a degree by common sense as to the manner in which Congress is likely to
delegate a policy decision of such economic and political magnitude to an administrative
agency.).
84

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1324a(h)(3), 85 a definitional provision 86 that does not mention lawful
presence or deferred action.
Likewise, we do not construe the broad grants of authority in 6 U.S.C.
202(5), 87 8 U.S.C. 1103(a)(3), 88 or 1103(g)(2) 89 as assigning unreviewable
decisions of vast economic and political significance 90 to an agency. Presumably because there is no specific statutory basis for DAPA, the United States
suggests that its authority is grounded in historical practice, but that does
not, by itself, create power. 91

Even assuming that an amalgamation of

As used in this section, the term unauthorized alien means, with respect to the
employment of an alien at a particular time, that the alien is not at that time either (A) an
alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this
chapter or by the Attorney General.
85

See Whitman v. Am. Trucking Assns, Inc., 531 U.S. 457, 468 (2001) (Congress, we
have held, does not alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisionsit does not, one might say, hide elephants in mouseholes.).
86

The Secretary . . . shall be responsible for . . . [e]stablishing national immigration


enforcement policies and priorities.
87

The Secretary . . . shall establish such regulations; prescribe such forms of bond,
reports, entries, and other papers; issue such instructions; and perform such other acts as he
deems necessary for carrying out his authority under the provisions of this chapter.
88

The Attorney General shall establish such regulations, prescribe such forms of
bond, reports, entries, and other papers, issue such instructions, review such administrative
determinations in immigration proceedings, delegate such authority, and perform such other
acts as the Attorney General determines to be necessary for carrying out this section.
89

Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson); accord id. (When an
agency claims to discover in a long-extant statute an unheralded power to regulate a
significant portion of the American economy, we typically greet its announcement with a
measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency
decisions of vast economic and political significance. (citation omitted) (quoting Brown &
Williamson, 529 U.S. at 159)); Perales, 903 F.2d at 1051 (The mere fact that a statute grants
broad discretion to an agency does not render the agencys decisions completely unreviewable
under the committed to agency discretion by law exception unless the statutory scheme,
taken together with other relevant materials, provides absolutely no guidance as to how that
discretion is to be exercised. (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985)
(per curiam)).
90

Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453
U.S. 654, 686 (1981)); but see NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) ([T]he
longstanding practice of the government, can inform our determination of what the law is.
91

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historical practice, 92 congressional acquiescence, the immigration context, and
the INA provide authority for DAPA, it would be bold and premature for us to
conclude that an as-yet-undefined delegation is beyond the scope of judicial
review.
Our decision in Perales is not to the contrary. There, we recognized that
the INSs decision not to grant pre-hearing voluntary departures and work
authorizations to a group of aliens was committed to agency discretion because
there is nothing in the [INA] expressly providing for the grant of employment
authorization or pre-hearing voluntary departure . . . to [that class of aliens].
Perales, 903 F.2d at 1047. An agencys inaction in such a situation is necessarily exempt from judicial review because there are no meaningful standards
against which to judge the agencys exercise of discretion. Id. In this case,
however, issuing work authorizations to DAPA beneficiaries is an affirmative
action, and whether the Secretary has the authority to do so remains an open
question.
And even assuming the Secretary has that power, it is the designation of
lawful presence itselfthe prerequisite for work authorization under DAPA
that causes Texass injury because a document showing legal presence makes
one eligible for a drivers license. 93 The Secretarys authority to grant lawful

(quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401, and Marbury v. Madison,
5 U.S. (1 Cranch) 137, 176)).
Many aspects of previous deferred-action programs have not been precisely
explained at this early stage of the litigation, particularly whether they granted lawful presence or were purely non-enforcement decisions, whether the beneficiaries were merely given
a temporary reprieve while transitioning from one lawful status to another, whether the programs were interstitial to a statutory legalization scheme, whether they are comparable in
scale and scope to DAPA, and whether Congresss failure to enact the DREAM Act bears on
its acquiescence to DAPA. Because the district court has not yet resolved those factual issues,
historical practice does not clarify our understanding of the reviewability of DAPA.
92

93

See supra notes 14 and 26 and accompanying text.

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presence was not at issue in Perales. Moreover, in Perales, id. at 1048, the
Attorney General had explicit statutory discretion to authorize pre-hearing
voluntary departuresdiscretion the INA does not specifically confer here.
The government asserts that 8 C.F.R. 274a.12(c)(14), 94 rather than
DAPA, makes aliens granted deferred action eligible for work authorizations.
But if DAPAs class-based deferred action program, on which work authorizations are contingent, must be subjected to the notice-and-comment process,
then work authorizations may not be validly issued pursuant to it until that
process has been completed. And again, it is DAPAs version of deferred action
itselfthe designation of lawful presencethat causes Texass injury. 95
VI.
Because the United States has not made a strong showing that judicial
review is precluded, we must decide whether it has made a strong showing that
DAPA does not require notice and comment. The government does not dispute
that DAPA is a rule 96; it urges instead that DAPA is exempt as an
interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice, 553(b)(A), or a matter relating to agency
management or personnel or to public property, loans, grants, benefits, or contracts, 553(a)(2).

The APAs notice-and-comment exemptions must be

An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, [may be able to obtain work
authorization upon application] if the alien establishes an economic necessity for
employment.
94

See supra notes 14 and 26 and accompanying text. Moreover, it would be reasonable
to construe 274a.12(c)(14) as pertaining only to those classes of aliens identified by Congress
as eligible for deferred action and work authorization. See supra note 78.
95

The APA defines a rule as an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes [various
substantive agency functions] or practices bearing on any of the foregoing. 5 U.S.C. 551(4).
96

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narrowly construed and if a rule is substantive, all notice-and-comment
requirements must be adhered to scrupulously. 97
A.
The governments main argument is that DAPA is a policy statement.
We consider two criteria to determine whether a purported policy statement is
actually a substantive rule: whether it (1) impose[s] any rights and obligations and (2) genuinely leaves the agency and its decisionmakers free to exercise discretion. 98 There is some overlap between those criteria because [i]f a
statement denies the decisionmaker discretion in the area of its coverage . . .
then the statement is binding, and creates rights or obligations. 99 While
mindful but suspicious of the agencys own characterization, we . . . focus[]
primarily on whether the rule has binding effect on agency discretion or
severely restricts it. 100
Profls & Patients, 56 F.3d at 595 (quoting United States v. Picciotto, 875 F.2d 345,
347 (D.C. Cir. 1989)); see Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974)
([T]he interested public should have an opportunity to participate, and the agency should be
fully informed, before rules having . . . substantial impact are promulgated.).
97

Profls & Patients, 56 F.3d at 595 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d
943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. at 197 (describing general
statements of policy as statements issued by an agency to advise the public prospectively of
the manner in which the agency proposes to exercise a discretionary power. (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979))); id. (Whatever else may be considered a
general statemen[t] of policy, the term surely includes an announcement . . . that an agency
will discontinue a discretionary allocation of unrestricted funds from a lump-sum appropriation. (alteration in original)); Brown Express, Inc. v. United States, 607 F.2d 695, 701 (5th
Cir. 1979) (A general statement of policy is a statement by an administrative agency
announcing motivating factors the agency will consider, or tentative goals toward which it
will aim, in determining the resolution of a [s]ubstantive question of regulation.).
98

Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel
Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)).
99

Profls & Patients, 56 F.3d at 595 (footnote omitted); accord id. ([W]e are to give
some deference, albeit not overwhelming, to the agencys characterization of its own rule.
(quoting Cmty. Nutrition Inst. v. Young, 818 F.2d at 946) (internal quotation marks omitted));
Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994) (This court, however,
must determine the category into which the rule falls: [T]he label that the particular agency
100

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Extrapolating from the implementation of DACA, 101 the district court
determined that [n]othing about DAPA genuinely leaves the agency and its
[employees] free to exercise discretion, 102 a finding that is reviewed for clear
error. Although the DACA Memo instructed agencies to review applications
on a case-by-case basis and exercise discretion, the court found that those
statements were merely pretext because only around 5% of the 723,000 applications have been denied. 103 Despite a request by the [district] [c]ourt, the
[g]overnments counsel did not provide the number, if any, of requests that
were denied [for discretionary reasons] even though the applicant met the
DACA criteria . . . . 104 The courts finding was also based on a declaration by
puts upon its given exercise of administrative power is not, for our purposes, conclusive;
rather it is what the agency does in fact. (alteration in original) (quoting Brown Express,
607 F.2d at 700)).
See Gen. Elec., 290 F.3d at 383 ([A]n agency pronouncement will be considered
binding as a practical matter if it either appears on its face to be binding, or is applied by the
agency in a way that indicates it is binding.); 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW
15.05[3] (2014) (In general, the agencys past treatment of a rule will often indicate its
nature.).
101

Texas, 2015 WL 648579, at *55 (second alteration in original) (quoting Profls &
Patients, 56 F.3d at 595). To the extent that the government maintains that the proper focus
of the inquiry into the binding nature of the DAPA Memo is on whether the agency has bound
itselfrather than on whether agency officials have bound their subordinatesthe government confuses the test for determining whether a purported policy statement is actually a
substantive rule with the notice-and-comment exception for internal directives, discussed
infra part VI.B. An agency action is not exempt as a policy statement just because the agency
purports to retain discretion; whether the agency in fact retains discretion is determined, at
least in part, by whether its decisionmakers are actually free to exercise discretion. See supra
notes 98100 and accompanying text. Of course, as discussed infra part VI.B, a lack of discretion by subordinates does not necessarily mean that a directive is subject to notice and
comment; subordinates are expected to adhere to internal directives.
102

See id. at *45, *55 n.101. Of the at least 1.2 million persons who qualify for DACA,
approximately 723,000 had applied through 2014. About 636,000 had been accepted, some
decisions were still pending, and only about 5% had been denied, with the top reasons being
the following: (1) the applicant used the wrong form; (2) the applicant failed to provide a
valid signature; (3) the applicant failed to file or complete Form I-765 or failed to enclose the
fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the
program. Id. at *45.
103

104

Id. at *5. The parties submitted over 200 pages of briefing over a two-month period,

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Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that DACA applications are simply
rubberstamped if the applicants meet the necessary criteria, id.; DACAs
Operating Procedures, which contains nearly 150 pages of specific instructions for granting or denying deferred action, id. at *55 (footnote omitted); and
mandatory language in the DAPA Memo, id. at *39, *56 n.103.
The agencys characterization of both the DACA and DAPA criteria
exudes discretionusing terms such as guidance, case-by-case, and prosecutorial discretion. 105 But a rule can be binding if it is applied by the agency
in a way that indicates it is binding, 106 and the states offered evidence from
DACAs implementation that DAPAs discretionary language was pretextual.
The programs are not completely analogous, however: Many more persons are
eligible for DAPA, 107 and eligibility for DACA was restricted to a younger
populationsuggesting that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. The DAPA Memo also contains more discretionary criteria: Applicants must not be an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other
factors that, in the exercise of discretion, makes the grant of deferred action

supported by more than 80 exhibits. The district court held a hearing on the motion for a
preliminary injunction and heard extensive argument from both sides and specifically asked
for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing. Id. at *55 n.101.
105

See DACA Memo, supra note 2; DAPA Memo, supra note 7.

Gen. Elec., 290 F.3d at 383; accord McLouth Steel, 838 F.2d at 132122 (reviewing
historical conformity as part of determination of whether rule was substantive or non-binding
policy, despite language in rule indicating that it was policy statement); id. at 1321 (More
critically than EPAs language . . . its later conduct applying it confirms its binding
character.).
106

Approximately 1.2 million persons are eligible for DACA and 4.3 million for DAPA.
See Texas, 2015 WL 648579, at *4, *55.
107

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inappropriate. 108 Despite those differences, there are important similarities:
The Secretary direct[ed] USCIS to establish a process, similar to DACA, for
exercising prosecutorial discretion, 109 and there was evidence that the DACA
application process itself did not allow for discretion, regardless of the approval
rate.
We are attentive to the difficulty of evaluating an agencys discretion
where the action involves issuing benefits to self-selecting applicants, as distinguished from imposing obligations on a regulated industry. Although a
person who expected to be denied DACA relief for discretionary reasons would
be unlikely to apply, the self-selection issue is mitigated by the district courts
finding that the [g]overnment has publicly declared that it will make no
attempt to enforce the law against even those who are denied deferred action
(absent extraordinary circumstances). Texas, 2015 WL 648579 at *50.
Moreover, the court did not rely exclusively on DACAs approval rate. It
also considered the detailed nature of the DACA Operating Procedures and the
declaration from Palinkas that, as with DACA, the DAPA application process
itself would preclude discretion: [R]outing DAPA applications through service
centers instead of field offices . . . created an application process that bypasses
traditional

in-person

investigatory

interviews

with

trained

USCIS

adjudications officers and prevents officers from conducting case-by-case


investigations, undermines officers abilities to detect fraud and nationalsecurity risks, and ensures that applications will be rubber-stamped.
There was conflicting evidence on the degree to which DACA allowed for
discretion.

Donald Neufeld, the Associate Director for Service Center

108

DAPA Memo, supra note 7, at 4.

109

Id. (emphasis added).

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Operations for USCIS, declared that deferred action under DACA is a . . . casespecific process that necessarily involves the exercise of the agencys discretion and purported to identify several instances of discretionary denials. 110
Although he stated that officials made approximately 200,000 requests for
more evidence after receiving DACA applications, the government does not
know the number, if any, that pertained to discretionary factors rather than
the objective criteria. Likewise, the government did not offer the number of
cases service center officials referred to field offices for interviews. 111 The
United States has not made a strong showing that it was clearly erroneous to
find that DAPA would not genuinely leave the agency and its employees free
to exercise discretion. 112
B.
A lack of discretion does not trigger notice-and-comment rulemaking if
the rule is one of agency organization, procedure, or practice, 553(b)(A);
agencies and their employees are of course expected to adhere to such rules.
The states dispute whether those denials were actually discretionary or instead
were required because of failures to meet DACAs objective criteria.
110

Neufeld stated that [u]ntil very recently, USCIS lacked any ability to automatically track and sort the reasons for DACA denials. Although the district court did not hold
an evidentiary hearing or make a formal credibility determination as to the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute. Following a hearing on the preliminary injunction, the government filed a surreply containing the Neufeld declaration. Although the government did not seek an evidentiary hearing, the states requested one if the new declarations create a fact dispute of material consequence to the motion. No such hearing was
held, and the court cited the Palinkas declaration favorably, Texas, 2015 WL 648579 at *5,
*8 n.13, *38 n.55, but described the Neufeld declaration as providing insufficient detail, id.
at *5, 55 n.101.
111

Because DAPA is much more than a nonenforcement policy, which is presumptively


committed to agency discretion, see supra part V.B, requiring it to go through notice and
comment does not mean that a traditional nonenforcement policy would also be subject to
those requirements, assuming that a party even had standing to challenge it. Moreover, a
nonenforcement policy may be exempted as a rule of agency organization, procedure, or practice. See infra part VI.B.
112

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We use the substantial impact test [as] the primary means . . . [to] look beyond
the label procedural to determine whether a rule is of the type Congress
thought appropriate for public participation. 113 An agency rule that modifies
substantive rights and interests can only be nominally procedural, and the
exemption for such rules of agency procedure cannot apply. 114 DAPA modifies
substantive rights and interestsconferring lawful presence on 500,000 illegal
aliens in Texas forces the state to choose between spending millions of dollars
to subsidize drivers licenses and changing its law.
The District of Columbia Circuit has enunciated a more intricate process
for distinguishing between procedural and substantive rules. 115 The court first
looks at the effect on those interests ultimately at stake in the agency proceeding. 116

Hence, agency rules that impose derivative, incidental, or

mechanical burdens upon regulated individuals are considered procedural,


rather than substantive. 117 Further, a procedural rule generally may not
encode [] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of behavior, 118 but the fact that the agencys decision

U.S. Dept of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord
STEIN, supra note 101, 15.05[5] (Procedural and practice rules have been distinguished
from substantive rules by applying the substantial impact test.).
113

114

Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d at 70103.

Compare Kaspar Wire Works, Inc. v. Secy of Labor, 268 F.3d 1123, 1132 (D.C. Cir.
2001) (recognizing that the D.C. Circuit has expressly rejected the Fifth Circuits substantial impact standard for notice and comment requirements), with City of Arlington, Tex. v.
FCC, 668 F.3d 229, 245 (5th Cir. 2012), affd, 133 S. Ct. 1863 (2013) (The purpose of noticeand-comment rulemaking is to assure fairness and mature consideration of rules having a
substantial impact on those regulated. (quoting United States v. Johnson, 632 F.3d 912, 931
(5th Cir. 2011))), and Phillips Petroleum, 22 F.3d at 620 (reaffirming substantial impact test
announced in Brown Express).
115

Natl Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (quoting
Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984)).
116

117

Id. (quoting Am. Hosp. Assn v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987)).

118

Id. (alterations in original) (quoting Am. Hosp., 834 F.2d at 1047).

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was based on a value judgment about procedural efficiency does not convert
the resulting rule into a substantive one. 119 A corollary to this principle is
that rules are generally considered procedural so long as they do not change
the substantive standards by which the [agency] evaluates applications which
seek a benefit that the agency has the power to provide. 120
Applying those standards here yields the same result as does the substantial-impact test. Although the burden DAPA imposes on Texas is derivative of issuing lawful presence to beneficiaries, it is still substantialTexas
has a quasi-sovereign interest in not being forced to choose between incurring
millions of dollars in costs and changing its laws. Moreover, DAPA establishes
the substantive standards by which the [agency] evaluates applications which
seek a benefit that the agency has the power to providea critical fact requiring notice and comment. 121 Further, receipt of those benefits implies a stamp
of approval from the government.
C.
Section 553(a)(2) exempts rules to the extent that there is involved . . . a
matter relating to . . . public property, loans, grants, benefits, or contracts.
553(a)(2). We construe the public-benefits exception very narrowly as applying only to agency action that clearly and directly relate[s] to benefits as that

Id. (quoting James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282 (D.C.
Cir. 2000)).
119

Id. (alteration in original) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C.
Cir. 1994)).
120

Id. (alteration in original) (quoting JEM Broad., 22 F.3d at 327) (internal quotation
marks omitted). Compare JEM Broad., 22 F.3d at 327 (The critical fact here, however, is
that the hard look rules did not change the substantive standards by which the FCC evaluates license applications . . . .), with Reeder v. FCC, 865 F.2d 1298, 1305 (D.C. Cir. 1989) (per
curiam) (stating that notice and comment is required for rules [that] changed substantive
criteria for evaluating station allotment counter-proposals).
121

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word is used in section 553(a)(2). 122
To the extent that DAPA relates to public benefits, it does not do so
clearly and directly. Although 553(a)(2) suggests that rulemaking requirements for agencies managing benefit programs are . . . voluntarily imposed, 123
USCIS, which is the agency tasked with evaluating DAPA applications, is not
such an agency. Neither USCIS nor any other agency within DHS confers public benefits on DAPA beneficiaries. Further, lawful presence is an immigration
classification, not a grant of money, goods, services, or any other kind of public
benefit that has been recognized, or was likely to have been recognized, 124
under this exception. 125 To the extent that lawful presence triggers eligibility
for public benefits, receipt of those benefits depends on compliance with programs managed by other agencies. See supra notes 1014 and accompanying
text.
In summary, the United States has not made a strong showing that it is

Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir. 1985); accord Hous.
Auth. of Omaha, Neb. v. U.S. Hous. Auth., 468 F.2d 1, 9 (8th Cir. 1972) (The exemptions of
matters under Section 553(a)(2) relating to public benefits, could conceivably include virtually every activity of government. However, since an expansive reading of the exemption
clause could easily carve the heart out of the notice provisions of Section 553, it is fairly
obvious that Congress did not intend for the exemptions to be interpreted that broadly.).
122

123

Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984).

The Departments of Agriculture, Health and Human Services, and Labor have
waived the exemption for matters relating to public property, loans, grants, benefits, or contracts. See 29 C.F.R. 2.7 (Department of Labor); Public Participation in Rule Making,
36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department of Agriculture); Public Participation
in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971) (Department of Health and Human
Services, then known as Health, Education, and Welfare).
124

See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by Indian Health
Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 1988 WL 97342
at *12 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans);
Baylor Univ. Med. Ctr., 758 F.2d at 105859 (Medicare reimbursement regulations issued by
Secretary of Health and Human Services); Rodway v. U.S. Dept of Agric., 514 F.2d 809, 813
(D.C. Cir. 1975) (food stamp allotment regulations).
125

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likely to succeed on the merits. We proceed to examine the remaining factors
of the test for obtaining a stay pending appeal.
VII.
The remaining factors also favor the states. The United States has not
demonstrated that it will be irreparably injured absent a stay. Planned Parenthood, 734 F.3d at 410 (quoting Nken, 556 U.S. at 426). It claims that the
injunction offends separation of powers and federalism, but it is the resolution
of the case on the merits, not whether the injunction is stayed pending appeal,
that will affect those principles.
The government urges that DHS will not be able to determine quickly
whether illegal aliens it encounters are enforcement priorities, but even under
the injunction, DHS can choose whom to remove first; the only thing it cannot
do is grant class-wide lawful presence and eligibility for accompanying benefits
as incentives for low-priority aliens to self-identify in advance. And the governments allegation that the injunction is delaying preparatory work is unpersuasive. Injunctions often cause delays, and the government can resume work
if it prevails on the merits.
The states have shown that issuance of the stay will substantially
injure them. Id. (quoting Nken, 556 U.S. at 426). A stay would enable DAPA
beneficiaries to apply for drivers licenses and other benefits, and it would be
difficult for the states to retract those benefits or recoup their costs even if they
won on the merits. That is particularly true in light of the district courts
findings regarding the large number of potential beneficiaries, including at
least 500,000 in Texas alone.
The last factor, where the public interest lies, id. (quoting Nken, 556
U.S. at 426), leans in favor of the states. The government identifies several
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important interests: It claims a stay would improve public safety and national
security, provide humanitarian relief to the family members of citizens and
lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16,
2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that granting a stay of removal . . .
would impede the governments interest in expeditiously . . . controlling immigration into the United States. 126 Presumably, by referring to the governments interest, the United States is referring to the public interest.
The states say the injunction maintains the separation of powers and
ensures that a major new policy undergoes notice and comment. And as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated,
deportable aliens would have identified themselves without receiving the
expected benefits. The public interest favors maintenance of the injunction,
and even if that were not so, in light of the fact that the first three factors favor
the states and that the injunction merely maintains the status quo while the
court considers the issue, 127 a stay pending appeal is far from justified. 128

Respondents Opposition to Petitioners Motion To Stay Removal at 8, El Asmar v.


Holder, No. 15-60155 (5th Cir. filed Mar. 16, 2015) (citing Nken, 556 U.S. at 436).
126

Cf., e.g., Veasey v. Perry, 769 F.3d 890, 89295 (5th Cir. 2014) (discussing the importance of maintaining the status quo in the election context because a change could cause
substantial disruption that would be difficult to undo).
127

An invalid rule does not necessarily result in vacatur; depending on the circumstance, the appropriate remedy may be remand to the agency. That determination is made
by evaluating whether (1) the agencys decision is so deficient as to raise serious doubts
whether the agency can adequately justify its decision at all; and (2) vacatur would be seriously disruptive or costly. N. Air Cargo v. USPS, 674 F.3d 852, 86061 (D.C. Cir. 2012).
The government has not asked for remand, and it would be premature for us to weigh those
considerations at this early stage.
128

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VIII.
The government maintains that the nationwide scope of the injunction
is an abuse of discretion, so it asks that the injunction be confined to Texas or
the plaintiff states. But partial implementation of DAPA would undermine the
constitutional imperative of a uniform Rule of Naturalization 129 and Congresss instruction that the immigration laws of the United States should be
enforced vigorously and uniformly. 130 A patchwork system would detract[]
from the integrated scheme of regulation created by Congress. 131 Further,
there is a substantial likelihood that a partial injunction would be ineffective
because DAPA beneficiaries would be free to move between states.
The motion to stay the preliminary injunction or narrow its scope pending appeal is DENIED.

129

U.S. CONST. art. I, 8, cl. 4 (emphasis added).

Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 115(1), 100 Stat.
3359, 3384 (emphasis added).
130

Arizona, 132 S. Ct. at 2502 (quoting Wis. Dept of Indus., Labor & Human Relations
v. Gould Inc., 475 U.S. 282, 288289 (1986)).
131

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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
Agreeing with the district court, the plaintiff-states recognize that
removal and deportation of non-citizens is a power exclusively of the federal
government. See Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). Their
complaint, however, is that the federal government isnt doing its job; that
whereas Congress, through unambiguous law, requires the identification,
apprehension, and removal of non-citizens who lack documentation to be in the
United States, see 8 U.S.C. 1225(a)(3) (inspection); id. 1225(b)(2)(A)
(detention); id. 1227(a) (removal), the President is thwarting that law.
According to the plaintiffs, the President refuses to remove immigrants
Congress has said must be removed and has memorialized that obstruction in
a Department of Homeland Security (DHS) memorandum. This, plaintiffs
contend, is a Take Care Clause violation, a Youngstown scenario courts must
correct; furthermore, because deferring removal of immigrants causes states
injury and has substantive impact, the plaintiffs contend that the DHS
memorandum is invalid without the full apparatus of rulemaking, notice and
comment and public participation, under the Administrative Procedure Act
(APA). 5 U.S.C. 553. The district court offered extensive viewpoints on the
first point, but ruled in plaintiffs favor only on the second. The government
seeks to stay that ruling, which is the matter before us.
My colleagues conclude that the government has not made a strong
showing of likelihood of success on the merits. Nken v. Holder, 556 U.S. 418,
434 (2009) (internal quotation marks and citation omitted). I am grateful to
them for their analysis and collegiality, and our exchange has informed my
views, although I dissent as follows.
Introduction: The Challenged Executive Action
On November 20, 2014, the Secretary of the Department of Homeland
Security sent to the Director of U.S. Citizenship and Immigration Services, and
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the Acting Director of the U.S. Immigration and Customs Enforcement, and
the Commissioner of the U.S. Customs and Border Protection a memorandum
with the subject heading, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children and with Respect to
Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents,
which aims to focus resources on illegal immigration at the border and
prioritize deporting felons while lesser priority, but removable, immigrants are
encouraged to self-report, pass background checks, and pay taxes on any
employment they might obtain under preexisting law. See Memorandum from
Jeh Johnson, Secy, Dept of Homeland Sec., to Leon Rodriguez, Dir., U.S.
Citizenship and Immigration Servs., et al. (Nov. 20, 2014) (Nov. 20 Memo),
available

at

http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_deferred_action.pdf. The Office of Legal Counsel at the Department of


Justice terms the memorandum prioritization policy, and the government in
briefing to us terms it deferred action guidance. By contrast, plaintiffs label
it a directive, a term adopted by the district court, which further describes
the memorandum as a program to award legal presence status to over four
million illegal aliens.
The November 20 memorandum, on its face, gives notice of expanded
eligibility criteria used by DHS to assess whether undocumented immigrants
who seek deferred action should for a specified period of time . . . [be]
permitted to be lawfully present in the United States. This memorandum,
expanding on pre-existing guidance, permits undocumented immigrants who
are hard-working, integrated members of American society, and otherwise
not enforcement priorities to self-report and become a lower removal priority.
The immigrant explicitly stays removable, but is not a removal priority. See
Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 48384 (1999)
(recognizing that deferred action, which was originally known as nonpriority,
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is an appropriate exercise of the Executives removal discretion); see also 8
C.F.R. 274a.12(c)(14) (defining deferred action as an act of administrative
convenience to the government which gives some cases lower priority). The
parties have offered argument and submissions, but to date without
adversarial and evidentiary testing, disagreeing about consequences that could
follow from executive adherence to the November 20 memorandum.
I.

Non-Justiciability

I would hold that Supreme Court and Fifth Circuit caselaw forecloses
plaintiffs arguments challenging in court this internal executive enforcement
guideline. In an earlier Texas v. United States, 106 F.3d 661 (5th Cir. 1997),
we summarized and resolved the following statutory argument:
[T]he State alleges that the Attorney General has breached
a nondiscretionary duty to control immigration under the
Immigration and Nationality Act. The State candidly concedes,
however, that section 1103 places no substantive limits on the
Attorney General and commits enforcement of the INA to her
discretion.
The States allegation that defendants have failed to enforce
the immigration laws and refuse to pay the costs resulting
therefrom is not subject to judicial review. An agency's decision not
to take enforcement actions is unreviewable under the
Administrative Procedure Act because a court has no workable
standard against which to judge the agencys exercise of discretion.
We reject out-of-hand the States contention that the federal
defendants alleged systemic failure to control immigration is so
extreme as to constitute a reviewable abdication of duty. The State
does not contend that federal defendants are doing nothing to
enforce the immigration laws or that they have consciously decided
to abdicate their enforcement responsibilities. Real or perceived
inadequate enforcement of immigration laws does not constitute a
reviewable abdication of duty.
Id. at 667 (citations omitted). The authority our court relied on was Chief
Justice Rehnquists opinion for a unanimous Supreme Court in Heckler v.
Chaney, which held that an agencys decision not to prosecute or enforce,
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whether through civil or criminal process, is a decision generally committed to
an agencys absolute discretion. 470 U.S. 821, 831 (1985); see also Perales v.
Casillas, 903 F.2d 1043, 104748 (5th Cir. 1990); see generally 5 U.S.C.
701(a)(2); Assn of Flight Attendants-CWA, AFL-CIO v. Huerta, F.3d ,
No. 13-1316, 2015 WL 2145776, at *14 (D.C. Cir. May 8, 2015) (holding that
the court was without jurisdiction to review an internal guidance document
that inform[s] the exercise of discretion by agents and officers in the field). 1
The district court repeatedly acknowledged the controlling authority of
Heckler and Texas that [r]eal or perceived inadequate enforcement of
immigration laws does not constitute a reviewable abdication of duty, but

Because I believe that Heckler compels the conclusion that the November 20
memorandum is non-justiciable, I would not reach the issue of standing. At this emergencystay point, I would note only that there has been little developed guidance from lower courts
on how far Massachusetts v. EPAs logic extends for plaintiff-states beyond the facts of that
case, which involved a state that asserted an injury based on its own property interests and
the relevant statute provided an explicit right to challenge the denial of a rulemaking
petition. See 549 U.S. 497, 51820 (2007). Furthermore, Texass inability to articulate a
limiting principle to its drivers license theory of standingtriggered, it appears, by any
federal executive policy that leads to the grant of even one deferred action requestas well
as countervailing developments in this court and others, suggest to me that Massachusetts v.
EPA may not apply here. See Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015) (holding
that the State of Mississippi had not demonstrated the concrete and particularized injury
required to give [it] standing to maintain [its] suit against the precursor DHS
memorandum); Arpaio v. Obama, 27 F. Supp. 3d 185, 207 (D.D.C. 2014) (holding that Sheriff
Arpaio did not have standing to challenge the precursor DHS memorandum); see also
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006) (holding that plaintiffs do not have
standing by virtue of their status as taxpayers to challenge the conferral of tax credits on
third parties); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (per curiam) (holding
that Pennsylvania lacked standing to challenge a New Jersey tax that triggered a
Pennsylvania tax credit because nothing prevent[ed] Pennsylvania from withdrawing that
credit for taxes paid to New Jersey and explaining that [n]o State can be heard to complain
about damage inflicted by its own hand); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(emphasizing that a third party lacks a judicially cognizable interest in the prosecution or
nonprosecution of another); Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones,
J., concurring) ([A] plaintiff who complains merely that a benefit has been unconstitutionally
granted to others is asserting only a generalized grievance that does not allow the plaintiff
standing to obtain judicial relief for the alleged wrong in federal court.). Given the
debatability of the plaintiff-states attenuated theory of standing, I would therefore resolve
this matter on the threshold issue of non-justiciability.
1

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held [t]hat is not the situation here because the November 20 memorandum
is an announced program of non-enforcement of the law that contradicts
Congress statutory goals. Texas v. United States, F. Supp. 3d , No. B14-254, 2015 WL 648579, at *50 (S.D. Tex. Feb. 16, 2015) (emphases added).
This twofold extrapolationfocusing not on the memorandum itself set against
current law, but instead on an embellishment of it set against a perceived
imperative to remove all illegal immigrantsrests on sublimer intelligences
than existing law allows. The district court distinguished Heckler and Texas
by drawing an inference of executive overreaching from two sources: first,
public statements by the President, and second, the district courts negative
assessment of the earlier DACA 2012 memorandum, an assessment that our
court has since rejected in Crane v. Johnson. The district courts inferences
from these two sources led it to characterize the November 20 memorandum
as a presidentially announced program that thwarts Congresss goals to
remove all undocumented immigrants. 2
This characterization is the essential point of disagreement I have with
the district courts ruling. Congress could, but has not, removed discretion
from DHS as to which undocumented immigrants to apprehend and remove
first.

See 6 U.S.C. 202(5) (directing Secretary to [e]stablish[] national

immigration enforcement policies and priorities); 8 U.S.C. 1103(a)(3)

The district courts April 7, 2015 order, revisiting its stay, reinforces, in my opinion,
this error. The April 7 order rests even more determinatively on press statements of the
President to re-emphasize both that [t]his is not merely ineffective enforcement[,] [t]his is
total non-enforcement, and also, contrary to our intervening Crane decision, that [i]f there
were any doubts that the 2014 DHS Directive is correctly characterized as substantive, the
Presidents warning to DHS employees of adverse consequences for failing to follow the
Directive should clearly extinguish those. Compare April 7 Memorandum Opinion & Order
(observing that immigration officers not only lack discretion but will suffer consequences),
with Crane, 783 F.3d at 25455 (holding that DACA 2012s guidelines and the November 20
memorandums guidelines afford immigration officers discretion to grant or withhold
deferred action on a case-by-case basis).
2

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(vesting the Secretary with broad authority to establish such regulations; . . .
issue such instructions; and perform such other acts as he deems necessary for
carrying out his authority under the statute); United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (describing immigration law as a field
where flexibility and the adaptation of the congressional policy to infinitely
variable conditions constitute the essence of the program (quoting Lichter v.
United States, 334 U.S. 742, 785 (1948))). Indeed, the Supreme Court recently
revisited the interplay between Congressional law and coordinate Executive
enforcement responsibility, clarifying that [a] principal feature of the removal
system is the broad discretion exercised by immigration officials, who must
decide whether it makes sense to pursue removal at all, taking into
consideration,

for

example,

immediate

human

concerns,

such

as

[u]nauthorized workers trying to support their families . . . [who] likely pose


less danger than alien smugglers or aliens who commit a serious crime.
Arizona, 132 S. Ct. at 2499; see also Crane, 783 F.3d at 249 (8 U.S.C. 1225
does not limit the authority of DHS to determine whether to pursue removal
of the immigrant). 3 Even specifically as to deferred action, the Supreme Court

As with criminal law enforcement generally, there is no one immigration imperative


and blueprint the Executive must follow. See Adam B. Cox & Cristina M. Rodriguez, The
President and Immigration Law, 119 Yale L.J. 458, 463, 51011 (2009) (contending that the
detailed, rule-bound immigration code developed by Congress has had counterintuitive
consequences of delegating tremendous authority to the President to set immigration
screening policy by making a huge fraction of noncitizens deportable at the option of the
Executive). Prosecution, as a core executive duty, has elasticity, ranging from
nonprosecution altogether, variable and selected charges, guilty plea flexibility, and
recommendations for sentencing leniency or severity. See, e.g., City of Seabrook v. Costle,
659 F.2d 1371, 1374 n.3 (5th Cir. 1981) (Although the word shall is normally interpreted to
impose a mandatory duty, . . . when duties within the traditional realm of prosecutorial
discretion are involved, the courts have not found this maxim controlling. (internal citation
omitted)); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973)
(holding that mandatory statutory language directing that each United States attorney
shall . . . prosecute for all offenses against the United States has never been thought to
preclude the exercise of prosecutorial discretion). This elasticity was described over a half
century ago by the Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935) (a
3

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has recognized that the Executive may choose to take no action to proceed
against an apparently deportable alien because of humanitarian reasons.
Reno, 525 U.S. at 484; see also id. at 483 (noting that [a]t each stage of
removal, the Executive has discretion to abandon the endeavor). And in
Crane, this court held that the DHS memorandum does not preclude the
agencys exercise of enforcement discretion, a ruling that the district court of
course did not have the benefit of. Compare Texas, 2015 WL 648579, at *55
(Nothing about DAPA genuinely leaves the agency and its employees free to
exercise discretion. (internal quotation marks, alterations, and emphasis
omitted)), with Crane, 783 F.3d at 25455 & n.42 (emphasizing that DACA
2012 makes it clear that the Agents shall exercise their discretion in deciding
to grant deferred action and that the November 20 memorandums case-bycase review of applicants makes it highly unlikely that the agency would
impose an employment sanction against an employee who exercises his
discretion to detain an illegal alien).

prosecutors interest in a criminal prosecution is not that it shall win a case, but that justice
shall be done.). Even more so in the immigration context, the Supreme Court has been
sensitive to unique concerns beyond humanitarian circumstances and limited resources,
especially foreign policy. See Arizona, 132 S. Ct. at 2499 (The dynamic nature of relations
with other countries requires the Executive Branch to ensure that enforcement policies are
consistent with this Nations foreign policy . . . .); Harisiades v. Shaughnessy, 342 U.S. 580,
58889 (1952) ([A]ny policy toward aliens is vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government. Such matters are so exclusively
entrusted to the political branches of government as to be largely immune from judicial
inquiry or interference.); cf. 8 U.S.C. 1252(g) (recognizing the executive branchs authority
to exercise prosecutorial discretion by generally stripping courts jurisdiction to hear any
claim by or on behalf of any alien arising from the Executives decision to commence
proceedings, adjudicate cases, or execute removal orders against any alien); Hiroshi
Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional
Norms and Statutory Interpretation, 100 Yale L.J. 545, 547 (1990) ([C]ourts should only
rarely, if ever, and in limited fashion, entertain constitutional challenges to decisions about
which aliens should be admitted or expelled.).

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The plaintiffs point to no statutory removal of the executive discretion
that the Supreme Court and our court emphasize vitally exists in the law.
Regardless, it is undisputed that the Executive presently is deporting a total
number of immigrants at a faster rate than any administration before, ever;
that the Executive is and should allocate limited resources to deport violent
and dangerous immigrants, ahead of citizenchildrens parents who self-report
to DHS acknowledging their illegal presence; and finally, that even categories
of persons, like immigrants cooperating with the government in criminal cases
or who contribute to our Armed Forces, historically receive deferrals. 4

The Executives granting of temporary reprieve from prosecution to categories of


individuals is neither new nor uncommon. This occurred, to begin with an example in the
immigration context, with the Family Fairness program. In 1987, the INS announced a
policy of deferring the deportations of certain children whose parents received legal status
under recent legislation. See Legalization and Family FairnessAn Analysis, 64 Interpreter
Releases 1190, 12001204 (Oct. 26, 1987) (containing policy by Alan C. Nelson, INS
Commissioner, providing that indefinite voluntary departure shall be granted to these
children). In 1990, the INS expanded its deferral program to include certain spouses of
legalized persons.
Memorandum from Gene McNary, Commr, Immigration and
Naturalization Serv., to Regional Commissioners, Family Fairness: Guidelines for Voluntary
Departure (Feb. 2, 1990) (providing that [v]oluntary departure will be granted for a one-year
period). The Family Fairness program was effectively codified by Congress later that year.
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990). The practice
of immigration parole, which permits a persons physical presence in the United States even
when she could not legally be granted formal admission, also originated as a purely
administrative innovation. David A. Martin, A Defense of Immigration-Enforcement
Discretion, 122 Yale L.J. Online 167, 178 (2012) (noting that [t]he practice was well
established by the time parole gained explicit statutory sanction in the original 1952
Immigration and Nationality Act). In the larger criminal contextsuch as the recent
nonprosecution of banks that self-report regarding overseas tax infractions, or
nonprosecution of possession of personal use amounts of marijuanadeferred prosecution is
common (and more consequential because statutes of limitations make it binding legally).
Indeed, the practice of pretrial diversion, set forth in the United States Attorneys Manual,
began as an executive initiative, without express statutory authorization, announced by
Assistant Attorney General Burke Marshall in 1964, and then expanded in 1974 by then
Deputy Attorney General Laurence Silberman, before the Pretrial Services Act of 1982 was
enacted. See Pre-Trial Diversion: Hearing on H.R. 9007 and S. 798 Before the Subcomm. on
Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 93d Cong.
12728 (1974); Stephen J. Rackmill, Printzliens Legacy, the Brooklyn Plan, A.K.A. Deferred
Prosecution, 60 Fed. Probation 1, 8, 10, 14 (June 1996). Such clear and announced
enforcement guidelines do several things. They channel limited resources by prioritizing
4

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The district court did not view the November 20 memorandum as a nonprosecution policy.

Instead, the district court reads the memorandum as

agency action that affirmatively confers legal status and other benefits on
undocumented immigrants. The district court, however, failed to recognize the
important distinction between lawful status and lawful presence. Whereas
legal status implies a right protected by law, legal presence simply reflects an
exercise of discretion by a public official. See Dhuka v. Holder, 716 F.3d 149,
156 (5th Cir. 2013); see also Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir.
2013) ([U]nlawful presence and unlawful status are distinct concepts.). The
November 20 memorandum like its precursors, dating back to 1975,
contemplates categorizing deferred action recipients as being present for a
temporary period of time, but does not change the applicants lawful status.
Congress, separately through 8 U.S.C. 1255, has codified exact ways noncitizens may gain lawful status, but has left lawful presence broadly defined
to include a discretionary period of stay authorized by the Attorney General.
8 U.S.C. 1182(a)(9)(B)(ii); see also Blacks Law Dictionary 565 (10th ed. 2014)
(defining prosecutorial discretion in the immigration context as [a] federal
authoritys discretion not to immediately arrest or endeavor to remove an
illegal immigrant because the immigrant does not meet the federal
governments immigration-enforcement priorities). When DHS exercises its
discretion to grant a qualified and temporary reprieve from removal, the
immigrants now-identified presence is thus consistent with, and furthers,

targeted felons. They animate the political process so that executive policy-setting either
proves its worth and becomes embodied in law, as with pretrial diversion or the Family
Fairness program, or oppositely, for myriad reasonsunworkability, unpopularity, or
budgetary realitiespolicies are rescinded or countermanded by law. Third, nonprosecution
necessarily means that persons not being prosecuted, arrested, and detained will seek work
according to pre-existing law, pay taxes, and parent children. See Nov. 20 Memo at 3 (caseby-case exercises of deferred action will encourage [people] to come out of the shadows . . .
and be counted).

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Congressional enactments. See Chaudhry, 705 F.3d at 292. Non-citizens who
only have lawful presence, but not lawful status, are not entitled to remain in
the United States; their presence is revocable at any time. The non-citizen
thus remains in the country at the discretion of DHS, who may remove the
individual whenever it pleases.
The plaintiff-states draw a further flavor of doubt from eligibility for
work authorization, whereas amici-states see advantage and financial
windfall. That choice is exclusively a task for Congress, however. See Perales,
903 F.2d at 1045, 1047 (holding that the INSs decision to grant work
authorization has been committed to agency discretion by law and is
therefore not subject to judicial review).

Moreover, the November 20

memorandum does not itself award work authorization. See U.S. Dept. of
Labor v. Kast Metals Corp., 744 F.2d 1145, 1156 (5th Cir. 1984) (finding a rule
non-substantive because its substantive effect was purely derivative of
another statute and rules). Work authorization for deferred-action recipients
is expressly authorized under a 1981 regulation that was promulgated through
notice-and-comment rulemaking.

See 8 C.F.R. 274a.12(c)(14). That

authorization has since been reinforced in the United States Code. See 8
U.S.C. 1324a(h)(3).

If an influx of applications makes the statutory

availability of work authorization inadvisable, it is for Congress, not the courts,


to recalibrate. See, e.g., 8 U.S.C. 1158(c)(1)(B) (directing the Secretary to
grant work authorization to certain categories of non-citizens); id. 1226(a)(3)
(directing the Secretary not to grant work authorization to a certain category
of non-citizens).
On this record, as well as focusing below on the four corners of the
November 20 memorandum, I would say DHS is adhering to law, not
derogating from it. The Supreme Court in Heckler noted that derogation and
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abdication occur rarely, where there is statutory language removing nonenforcement discretion yet still a refusal by the agency to institute
proceedings or consciously and expressly adopt[ing] a general policy that is
so extreme as to amount to an abdication of its statutory responsibilities. 470
U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir.
1973)). Neither exists here. The DHS memorandum guides executive policy
that has allowed enforcement and more removals per year than under any
prior presidency. Although executive abdication, if renunciatory of Congress,
extreme and diametric, must be checked, courts should not truncate the
myriad political processes whereby most executive intention, good and bad, is
ever balanced. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) ([W]e hardly
need to note that an agencys decision to ignore congressional expectations may
expose it to grave political consequences.); Vermont Yankee Nuclear Power
Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 54344 (1978) ([T]his
much is absolutely clear.

Absent constitutional constraints or extremely

compelling circumstances the administrative agencies should be free to fashion


their own rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties. Indeed our cases
could hardly be more explicit in this regard. (internal quotation marks and
citations omitted)). See generally Jack M. Beermann, Congressional
Administration, 43 San Diego L. Rev. 61 (2006).
In fact, if the Supreme Court has insisted on any one constant as it
relates to immigration disputes, it is to redirect disputes from the multiplicity
of state reactions back to dialogue between our coequal federal political
branches so that nationwide concerns and practicalities are weighed,
Congresss purse dispensed as it chooses, and the Executive refines its
enforcement priorities or is compelled by Congress to do so.

If internal

executive policy-setting authorityadjusting to limited resources and making


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critical offender severity determinations, all superintended by Congressnow
instead becomes challengeable in courts and forced into the often cumbersome
and time-consuming mechanisms of public input, Kast Metals, 744 F.2d at
1152, this case, as precedent, may well rise, swell, and burst with clutter
beyond judicial control over immigration removal (in)action.

Id. at 1156

(noting that notice and comment would foresee aeons of rulemaking


proceedings when all the agency seeks to do is operate in a rational manner).
See generally Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1353, 1354
(Silberman, J., dissenting) (cautioning courts against teas[ing] statutory law
out of a vacuum created by Congress and ignoring the zero sum game of
limited Congressional appropriations which require executive agencies to
communicate prioritizations via policies).
II.

Executive Policy-Setting

For the foregoing reasons, I would grant a stay of the district courts
preliminary injunction because I believe the policy articulated in the November
20 memorandum is non-justiciable. 5

See supra Part I; see also 5 U.S.C.

Absent non-justiciability, I would agree that there is a reason to maintain the status
quo pending the governments approaching appeal on the merits. Compare INS v.
Legalization Assistance Project of the L.A. Cnty. Fedn of Labor, 510 U.S. 1301, 1306 (1993)
(OConnor, Circuit Justice) (granting an application to stay the district courts order that
required enforcement of INS regulations when the district courts order was an improper
intrusion by a federal court in the workings of a coordinate branch of the Government), with
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509
(2013) (Breyer, J., dissenting) ([I]t is a mistake to disrupt the status quo so seriously before
the Fifth Circuit has arrived at a considered decision on the merits.), and Campaign for S.
Equality v. Bryant, 773 F.3d 55, 58 (5th Cir. 2014) (granting a stay pending appeal in part
because a temporary maintenance of the status quo prevents the inevitable disruption that
would arise from a lack of continuity and stability in [an] important area of law). See
generally Jill Wieber Lens, Stays Pending Appeal: Why the Merits Should Not Matter, Fla.
St.
U.
L.
Rev.
(forthcoming)
(manuscript
at
35),
available
at
http://ssrn.com/abstract=2571003 (arguing that panels reviewing motions for stay pending
appeal should consider whether the circumstances would (irreparably change) in a way that
would interfere with the appellate courts ability to make a decision meaningful to the
parties).
5

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701(a)(2); Perales, 903 F.2d at 104547. However, because the district courts
injunction rested solely on the district courts classification of the November 20
memorandum as agency action issued without adhering to the notice and
comment requirements of the APA, I articulate my disagreement on that point
as well.
The district court highlighted that well-developed caselaw exists to
distinguish executive action that is internal policy-setting from executive
action that is a procedurally invalid legislative rule because it binds members
of the public, the agency, and even courts. See Hudson v. FAA, 192 F.3d 1031,
103536 (D.C. Cir. 1999); Syncor Intl Corp. v. Shalala, 127 F.3d 90, 94 (D.C.
Cir. 1997). Judge Kavanaughs well-reasoned opinion in National Mining
Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014), succinctly articulates
the 553 framework. Step 1, he explains, is whether the agency has said it is
imposing a legally binding rule on regulatees. Id. at 25152. Even if the
agency says it is not, Step 2 asks whether the policy nonetheless draws a line
in the sand, coercing conformity. Id. at 252. Finally, Step 3 asks whether postguidance events show that agency action has become binding on regulated
parties. Id. at 253. The district court correctly noted that the analysis
substantially relies on the specific facts of a given case. Texas, 2015 WL
648579, at *52. Because the November 20 memorandum has yet to go into
effect, and no evidentiary hearing was held, the record is undeveloped and
contains considerable conjecture, and conjecture is guided by feeling.
A. Step 1: Agency Characterization
The starting point for analysis under 553(b), though not the deciding
factor, is an agencys own characterization of its action, and specifically
whether the agency itself seeks to impose binding obligations as a basis for
enforcement action. Profls & Patients for Customized Care v. Shalala, 56 F.3d
592, 596 (5th Cir. 1995); see also Kast Metals, 744 F.2d at 1149; Pac. Gas &
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Elec. Co. v. Fed. Power Commn, 506 F.2d 33, 39 (D.C. Cir. 1974). DHS titles
its memorandum as internal policy statements expanding prosecutorial
discretion for undocumented immigrants who seek deferred action instead of
removal from the United States. That description is neither a boilerplate
beginning nor a final caveat, weak bookends around an imposed regulatory
regime. See Huerta, 2015 WL 2145776, at *5 (The language employed by the
agency may play an important role [in determining whether a document is a
policy statement or legislative rule]; a document that reads like an edict is
likely to be binding, while one riddled with caveats is not.); Natl Mining Assn,
758 F.3d at 25153. No fewer than ten times, the November 20 memorandum
instructs immigration officers that: (1) DHS must exercise prosecutorial
discretion in the enforcement of the law; (2) [immigration laws] are not
designed to be blindly enforced without consideration given to the individual
circumstances of each case; (3) [d]eferred action is a form of prosecutorial
discretion by which the Secretary deprioritizes an individuals case for
humanitarian reasons, administrative convenience, or in the interest of the
Departments overall enforcement mission; (4) deferred action is legally
available so long as it is granted on a case-by-case, and it may be terminated
at any time at the agencys discretion; (5) [c]ase-by-case exercises of deferred
action for children and long-standing members of American society who are
not enforcement priorities are in this Nations security and economic interests
and make common sense; (6) this Departments limited enforcement
resources . . . must continue to be focused on those who represent threats to
national security; (7) USCIS [should] establish a process, similar to DACA
[2012], for exercising prosecutorial discretion through the use of deferred
action, on a case-by-case basis; (8) ICE is further instructed to review pending
removal cases . . . and to refer [certain] individuals to USCIS for case-by-case
determinations; (9) immigration officers will be provided with specific
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eligibility criteria for deferred action, but the ultimate judgment as to whether
an immigrant is granted deferred action will be determined on a case-by-case
basis; and (10) [i]t remains within the authority of the Executive Branch . . .
to set forth policy for the exercise of prosecutorial discretion and deferred
action . . . . This memorandum is an exercise of that authority. 6
B. Step 2: Intent to Bind
Looking behind an agencys stated purpose claiming or disclaiming the
force and effect of law, courts also give a close, four-corners look for language
that reads like an edict, commanding language, to discern if a priority
statement nonetheless will operate bindingly on regulatees. Natl Mining
Assn, 758 F.3d at 252 (The most important factor concerns the actual legal
effect (or lack thereof) of the agency action in question on regulated entities.).

In this regard, also, the November 20 memorandum is consistent with prior deferred
action guidance dating back to at least 1975, which structure executive discretion to delay
removal of immigrants who are not priorities for removal. See Immigration and
Naturalization Service Operating Instruction 103.1(a)(1)(ii) (1975); Memorandum from Sam
Bernsen, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15,
1976); Memorandum from Bo Cooper, INS Exercise of Prosecutorial Discretion (July 11,
2000); Memorandum from Doris Meissner, Commissioner, Immigration and Naturalization
Service, to Regional Directors et al., Exercising Prosecutorial Discretion (Nov. 17, 2000);
Memorandum from William J. Howard, Principal Legal Advisor, ICE, to All Office of the
Principal Legal Advisor Chief Counsel, Prosecutorial Discretion (Oct. 24, 2005);
Memorandum from Julie L. Myers, Assistant Secretary of Homeland Security, to All Field
Office Directors and Special Agents in Charge of U.S. Immigration and Customs
Enforcement, Prosecutorial and Custody Discretion (Nov. 7, 2007); Memorandum from John
Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration
Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens
(June 17, 2011). In several instances, prior policies on deferred action were held to be exempt
from requirements in 553. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1009 (9th Cir.
1987) (rejecting claim that the 1981 version of INS Operating Instruction 103.1(a)(1)(ii)
violated the notice-and-comment requirements of the APA, because the amended Operating
Instruction qualifies under the APAs exception for general statements of policy); Pasquini
v. Morris, 700 F.2d 658, 662 (11th Cir. 1983) (concluding that Operating Instruction
103.1(a)(1)(ii) was exempt from 553(b) because it was only general guidance for service
employees (internal quotation marks and citation omitted)).
6

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As a preliminary matter, it is undisputed that any directing here is
internal only, not binding with respect to regulated entities. And to the extent
that DHS directs internally, it directs immigration officers to establish a
process, similar to DACA [2012], for exercising prosecutorial discretion through
the use of deferred action, on a case-by-case basis, (emphasis added),
containing features common to nonbinding statements of policy (exempt from
notice and comment procedure), and dissimilar from binding substantive
regulations (requiring APA rulemaking and public participation).
First, the memorandum guides only as to when to exercise broad lenity,
i.e. delayed enforcement. The memorandum channels when DHS will not act,
much like longstanding Department of Justice internal prosecution guidelines,
such as the Petite Policy, which precludes the initiation or continuation of a
federal prosecution, following a prior state or federal prosecution based on
substantially the same act(s) or transaction(s) . . . . This policy constitutes an
exercise of the Departments prosecutorial discretion, and applies even where
a prior state prosecution would not legally bar a subsequent federal
prosecution . . . . Dual and Successive Prosecution Policy (Petite Policy),
United States Attorneys Manual, Title 9-2.031; 7 see also Heckler, 470 U.S. at
832 ([W]e note that when an agency refuses to act it generally does not
exercise its coercive power over an individuals liberty or property rights, and
thus does not infringe upon areas that courts often are called upon to protect.).

The Petite Policy, like many other law enforcement policies, is a policy governing
prosecutorial discretion as to an undefined class of similarly situated persons that has no
express statutory authorization and has never been challenged as ultra vires, either violative
of APA rulemaking or as an abdication from the Take Care duty to enforce the federal
criminal code. See Heckler, 470 U.S. at 832 ([A]n agencys refusal to institute proceedings
shares to some extent the characteristics of the decision of a prosecutor in the Executive
Branch not to indicta decision which has long been regarded as the special province of the
Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to take
Care that the Laws be faithfully executed. (citation omitted)).
7

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The pretext cases relied on by plaintiffs, see, e.g., Appalachian Power Co. v.
EPA, 208 F.3d 1015 (D.C. Cir. 2000); Phillips Petroleum Co. v. Johnson, 22
F.3d 616 (5th Cir. 1994); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317
(D.C. Cir. 1988); Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987)
(per curiam), involve, contrastingly, affirmative agency action or exact
nonenforcement tolerances, such as food contamination set to parts per billion
specificity, not, as here, a nonprosecution memorandum built around offenders
who self-report, confirm their whereabouts, submit to background checks, and
stay subject to prosecution and removal while seeking employment according
to law.
Second, the memorandum neither continues nor imposes a regulatory
regime. There is no threat to conform. No obligation or prohibition is placed
on regulated entities. Instead, DHS has expanded on its preexisting guidance,
allowing immigrants to self-report their illegal presence but show they fall
outside DHSs enforcement priorities and
inappropriate for deferred action.

also are not otherwise

The memorandum describes opt-in

procedures, whose incontestable accomplishment is that persons illegally here


will be identified and located and submit to a criminal background check, all
the while allowing DHS to tighten border interdiction and target violent and
dangerous felons. It goes without saying that to prosecute a fugitive, the
government must first find him.

Every applicant under the November 20

memorandum voluntarily will self-report as illegally present and provide


information DHS then will use in a criminal background check coordinated
with Immigration and Customs Enforcement (ICE) to effectuate priority
removals. Nov. 20 Memo at 3 (Case-by-case exercises of deferred action for
children and long-standing members of American society who are not
enforcement priorities are in this Nations security and economic interests and
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make common sense, because they encourage these people to come out of the
shadows, submit to background checks, pay fees, . . . and be counted.).
Third, plaintiffs cite no 553 caselaw relating to a statutory regime
whose flexibility the Supreme Court has highlighted, Arizona, 132 S. Ct. at
2499 (A principal feature of the removal system is the broad discretion
exercised by immigration officials.); 6 U.S.C. 202(5) (affording the Secretary
authority to [e]stablish[] national immigration enforcement policies and
priorities), set against agency policy guidance that incorporates this same
flexibility, such as the criteria that the applicant (1) not be an enforcement
priority; and (2) present no other factors that, in the exercise of discretion,
makes the grant of deferred action inappropriate. Any invalidating logic must
postulate the opposite of these broad caveats, therefore, both that the Supreme
Courts yes (broad discretion over removal) means no (no removal discretion),
and also that DHSs no (no blanket approvals to be present) means yes (give
lawful status to millions). 8 Also illogical, future policy-setting would seem
possible only when executive fiat is absolute, which in turn would maximize
executive arbitrarinessunwritten and individualized assessments for
deferred action applicantsand minimize information Congress has to
perform day-to-day oversight and funding.

See Richard J. Pierce, Jr.,

Administrative Law Treatise, 6.3, at 42425 (5th ed. 2010) (warning of the
horrible incentives if agencies are unable to direct their employees without
the expensive and time-consuming notice and comment procedure).

In its April 7, 2015 supplemental order, the district court construes remarks by the
President as a threat to immigration officers to conform to the November 20 memorandum.
However, the memorandum instructs officials to use discretion and make case-by-case
determinations, so any invalidating logic must actually be that officials understand the
threat to mean they must do the opposite of what is in writing, and apply criteria blindly,
ignore discretionary criteria, and decline to make case-by-case determinations.
8

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C. Step 3: Implementation Facts
Behind label and language, courts vigilantly will look to any postguidelines implementation data to assure, again, that an agency policy
announcement does not inadvertently or strategically cause binding effect
equivalent to a legislative rule. The concern is to not allow an agency speak
one wayclaiming resource constraints and discretionyet carry out de facto
regulation, binding regulatees. Put delicately, is the announced discretion
pretext? Put indelicately, as the district court held, is the Executive being
disingenuous? Texas, 2015 WL 648579, at *53.
The district court held that [d]espite the [November 20] memorandums
use of phrases such as case-by-case and discretion the criteria set forth in
the November 20 memorandum were actually binding. But because it
enjoined the November 20 memorandum before it went into effect, no postguidance evidence exists to help determine whether the agency has applied
the guidance as if it were binding. Natl Mining Assn, 758 F.3d at 253.
Instead, as noted earlier, the district court looked above DHS, the executive
agency, to President Obama, the executive-in-chief to find contradiction to
DHS stated purpose and emphasis on case-by-case discretion. For good reason,
however, the Supreme Court has not relied on press statements to discern
government motivation and test the legality of governmental action, much less
inaction. See Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006) (We have
not heretofore, in evaluating the legality of executive action, deferred to
comments made by such officials to the media.). Presidents, like governors
and legislators, often describe law enthusiastically yet defend the same law
narrowly. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647
(1952) (Jackson, J.) (noting [t]he claim of inherent and unrestricted
presidential powers has long been a persuasive dialectical weapon in political
controversy yet warning against the use of such unadjudicated claims of
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power to answer constitutional questions). In addition, our court has noted
that informal communications often exhibit a lack of precision of
draftsmanship and therefore are generally entitled to limited weight in the
analysis of whether a rule is substantive. Profls & Patients, 56 F.3d at 599
(quoting Cmty. Nutrition, 818 F.2d at 948). 9
More significant, the district court discerned pretextinferred intent to
bindfrom the fact that the majority of DACA 2012 deferred action
applications have been granted. I disagree for factual and legal reasons.
First, without evidence-taking and testing, I question the relevance of
DACA 2012 implementation data. The DACA 2012 memorandum purports to
guide the exercise of prosecutorial discretion with respect to individuals who
came to the United States as children, a subset of undocumented immigrants
who are particularly inculpable as they were brought to this country as
children and, thus, lacked the intent to violate the law. That memorandum,
in its original form, applies only to individuals who came to the United States
under the age of sixteen, have not yet reached the age of thirty, and who have
achieved a certain level of education. The November 20 memorandum being
challenged here, and specifically its DAPA provisions, on the other hand, casts
a much wider net, applying to a larger and broader group of individuals, but
then narrows its deferred-action-availability reach through the use of more
discretionary criteria than in DACA 2012. Despite these dissimilarities, the
district court concluded that [t]here is no reason to believe that DAPA will be
implemented any differently than DACA [2012] and there was no suggestion
that DAPA will be implemented in a fashion different from DACA [2012].

Much less informally, Presidents often in presidential signing statements say they
will not enforce aspects of law, yet no court has used such statements to classify subsequent
agency inaction as an intent to bind triggering the APA rulemaking process.
9

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Texas, 2015 WL 648579, at *39, *55 n.96. The court did not explore, however,
the governments contention that a significant difference existed between the
two programs, specifically, the catch-all discretionary exception that was
added to the November 20 memorandumpresent no other factors that, in
the exercise of discretion, makes the grant of deferred action inappropriate.
The district court rejected this distinction because, the court contended, using
circular reasoning, that the approval rate under the DACA 2012 program
persuaded the Court that this factor is merely pretext. Id. at *55 n.101.
Second, the district court placed the burden on the government to put
forth evidence of individuals who had been denied [under DACA 2012] for
reasons other than not meeting the criteria or technical errors with the form
and/or filing. Id. But [t]he plaintiff has the burden of introducing sufficient
evidence to justify the grant of a preliminary injunction. See PCI Transp., Inc.
v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 1985). The district court
then reached its conclusions about the agencys binding intent without giving
any weight to the governments contrary evidence or justification for
discrediting that evidence.

See Four Seasons Hotels and Resorts, B.V. v.

Consorcio Barr, S.A., 320 F.3d 1205, 1211 (11th Cir. 2003) (holding that the
district court abused its discretion when it effectively issued and upheld the
injunction based on evidence presented by only one party and without holding
an evidentiary hearing); cf. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554,
55859 (5th Cir. 1987) (finding that the district court did not abuse its
discretion by declining to hold an evidentiary hearing where there were no
material factual disputes).

Especially because this case touches on the

sensitive issues of immigrant presence in the United States, as well as when


one branch of government may invalidate internal guidelines of another
branch, I do not think it should come resolved on inferences of
disingenuousness made from press statements and untested inferences from a
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precursor program whose challenge on similar grounds our court has rejected.
See Crane, 783 F.3d 244. No evidentiary hearing was held. For example,
Kenneth Palinkass contention that DACA 2012 applicants are rubberstamped was not tested against Donald Neufelds specific examples of
discretionary denials. 10 See Sims v. Greene, 161 F.2d 87, 88 (3rd Cir. 1947)
(Such conflict [between allegations in competing pleadings and affidavits]
must be resolved by oral testimony since only by hearing the witnesses and
observing their demeanor on the stand can the trier of fact determine the
veracity of the allegations . . . made by the respective parties. If witnesses are
not heard the trial court will be left in the position of preferring one piece of
paper to another.); Heil v. Trailer Intl Co. v. Kula, 542 F. Appx 329, 334 n.17
(5th Cir. 2013) ([I]t is fundamental that, [i]f there is a factual controversy, . .
. oral testimony is preferable to affidavits because of the opportunity it provides
to observe the demeanor of the witnesses. (citation omitted)); see also Four
Seasons, 320 F.3d at 1211 (Where conflicting factual information place[s] in
serious dispute issues central to [a partys] claims and much depends upon the
accurate presentation of numerous facts, the trial court err[s] in not holding
an evidentiary hearing to resolve these hotly contested issues. (citations and
internal quotation marks omitted)); 11 Charles Alan Wright et al., Federal
Practice and Procedure 2949 (3d ed.) (When the outcome of a Rule 65(a)

The government presented a 13-page affidavit of Donald Neufeld, USCIS Associate


Director for Service Center Operations, accompanied by over 40 pages of exhibits, which
purported to show that USCIS maintains authority and discretion to grant deferred action
to non-DAPA applicants and to deny deferred action to applicants who meet the November
20 memorandums listed criteria. The affidavit describes specific examples of instances when
USCIS denied DACA 2012 requests for discretionary reasons that were not contemplated by
the DACA 2012 guidelines. This affidavit was based on Neufelds personal knowledge gained
during the course of his official duties. Significantly, the district court never mentions
Neufeld, and its only reference to his proof was its early rejection of the entire declaration
and exhibits, without any detailed discussion, as not providing the level of detail that the
Court requested. Texas, 2015 WL 648579, at *5.
10

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application depends on resolving a factual conflict by assessing the credibility
of opposing witnesses, it seems desirable to require that the determination be
made on the basis of their demeanor during direct and cross-examination,
rather than on the respective plausibility of their affidavits.). As a second
example, Jeh Johnson, the author of what is held disingenuous, was not heard
from. His ten instructions requiring individualized, case-by-case assessment
were not tested as pretext.

When a court assesses unlawful motive and

declares executive action invalid nationwide, highest government officials


whose veracity is entirely discredited should be heard. Indeed, the District of
Columbia Circuit commendably has developed a curative option short of
complete invalidation for such circumstances. McLouth, 838 F.2d at 1324
(remanding to permit agency to demonstrate that it is truly exercis[ing]
discretion in individual cases). This intermediate remedy seems especially
noteworthy because of our intervening Crane decision, which calls into doubt
the district courts basis for inferring disingenuousness. 11
Third, DACA 2012 itself contains classic markers of discretion, including
the ability to interview applicants, request additional evidence, and contact the
applicants educational institution, other government agencies, employers, or
other entities to verify documents and facts. This discretion was actually
exercised by DHS; the executive made nearly 200,000 requests for additional
evidence under the DACA 2012 program, a fact the district court does not
mention. Applications have been denied after an official exercised discretion
in applying the criteria set forth in the DACA 2012 memorandum (i.e., making

If a concern is that the unanimous panel in Crane itself lacked evidentiary


foundation, it would seem even more advisable to require actual and adversarial evidencetaking, avoiding either agency action that is feared to be disingenuous or, an opposite
extreme, requiring DHS to prioritize its limited resources only through full public
participation.
11

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a subjective determination that the applicant posed a public safety risk), and
for reasons not expressly set forth in the DACA 2012 memorandum.
Fourth, and especially significant, placing determinative weight on the
approval rate of applicants under DACA 2012 fails to take into account the
crucial voluntary aspect of this memorandum, that applicants will not apply if
they are ineligibleessentially self-reporting for removalor, if eligible, when
they have any other flaw they do not want revealed. In light of this manifest
self-selection bias, it is unclear why the appropriate piece of data would be the
approval rate of only applicants, crucially relied on by the district court to infer
pretext, rather than the approval rate of all those who qualify. Again, the
district court did not address at all this self-selection bias inherent in DACA
2012 and the November 20 memorandum.
Finally, as a leading administrative law scholar has observed, it is to be
expected and encouraged that subordinate executive officers will follow
enforcement guidelines. See Pierce, Administrative Law Treatise, 6.3, at
42425; see also Profls & Patients, 56 F.3d at 599 (agents conformance with
agency guidance is not particularly probative whether the rule is substantive
because what purpose would an agencys statement of policy serve if agency
employees could not refer to it for guidance?). This positive should not become
a negative to invalidate the very delineation of executive authority the APA
exists to assure.
D. Commonsense
Judge Kavanaugh brackets his National Mining Association framework
for the 553 analysis applied above with commonsense. First, he offers that
agency action that merely explains how the agency will enforce a statute . . .
in other words, how it will exercise its broad enforcement discretion or
permitting discretion under some extant statute or ruleis a general
statement of policy. Natl Mining Assn, 758 F.3d at 252. The Supreme Court,
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in Arizona, resolved that immigration officials have broad discretion to
enforce the federal immigration laws, including the deci[sion] whether it
makes sense to pursue removal at all. Arizona, 132 S. Ct. at 2499. Second,
Judge Kavanaugh notes that a token of a general statement of policy is that
the agency would have legal authority to undertake the action absent the
guidance document. See Natl Mining Assn, 758 F.3d at 253 ([W]hen the
agency applies [a general statement of] policy in a particular situation, it must
be prepared to support the policy just as if the policy statement had never been
issued. (internal quotation marks and citation omitted)). As described earlier,
deferred action has existed for half a century, reflected in longstanding
regulations as an act of administrative convenience, see 8 C.F.R.
274a.12(c)(14), and recognized by the Supreme Court as an appropriate
exercise of the Executives removal discretion, see Reno, 525 U.S. at 48384.
Indeed, the same deferred action decisions for which the November 20
memorandum provides guidance

already are permissible under the

unchallenged 2014 enforcement priorities memorandum, which is explicitly


incorporated into the November 20 memorandum. See Memorandum from Jeh
Charles Johnson, Policies for the Apprehension, Detention and Removal of
Undocumented Immigrants (Nov. 20, 2014). The November 20 memorandum,
by incorporating a framework the plaintiffs admit is discretionary, necessarily
contains at least that identical level of discretion.
Conclusion
I would hold that the underlying issue presented to usthe order in
which non-citizens without documentation must be removed from the United
Statesmust be decided, presently is being decided, and always has been
decided, by the federal political branches. See Mathews v. Diaz, 426 U.S. 67,
81 (1976) (For reasons long recognized as valid, the responsibility for
regulating the relationship between the United States and our alien visitors
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has been committed to the political branches of the Federal Government.). On
the expedience of immigration measures, sensible things can be said on all
sides, mindful that our country is an immigrant society itself. 12 The political
nature of this dispute is clear from the names on the briefs: hundreds of
mayors, police chiefs, sheriffs, attorneys general, governors, and state
legislatorsnot to mention 185 members of Congress, 15 states and the
District of Columbia on the one hand, and 113 members of Congress and 26
states on the other. I would not affirm intervention and judicial fiat ordering
what Congress has never mandated.

Over twenty years ago, Judith Shklar observed in her book American Citizenship,
aptly subtitled The Quest for Inclusion, that the United States has an extremely
complicated history of exclusions and inclusions, in which xenophobia, racism, religious
bigotry, and fear of alien conspiracies have played their part. Judith N. Shklar, American
Citizenship: The Quest for Inclusion 4 (1991). And over two hundred years ago, our noncitizen forebears grieved against their king that, [h]e has endeavoured to prevent the
population of these States; for that purpose obstructing the Laws for Naturalization of
Foreigners; refusing to pass others to encourage their migrations hither. The Declaration of
Independence (U.S. 1776).
12

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United States Court of Appeals


FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK

TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

May 26, 2015


MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 15-40238

State of Texas, et al v. USA, et al


USDC No. 1:14-CV-254

Enclosed is an opinion entered in this case.

Sincerely,
LYLE W. CAYCE, Clerk

By: _________________________
Jamei R. Schaeffer, Deputy Clerk
Mr. Alexandre I. Afanassiev
Mr. Chirag Gopal Badlani
Mr. J. Campbell Barker
Mr. Michael Bekesha
Mr. James Davis Blacklock
Mr. David J. Bradley
Ms. Beth S. Brinkmann
Mr. Joseph Conrad Chapelle
Mr. Jeffrey A. Clair
Mrs. Angela Veronica Colmenero
Mrs. April L. Farris
Mr. Matthew Hamilton Frederick
Mr. Kyle R. Freeny
Mr. Matthew James Ginsburg
Ms. Kathleen Roberta Hartnett
Mr. William Ernest Havemann
Mr. Michael Hethmon
Mr. Lawrence John Joseph
Mr. Scott A. Keller
Mr. Stephen Blake Kinnaird
Mr. Adam Paul KohSweeney
Mr. Steven James Lechner
Mr. Gabriel Markoff
Mr. Scott R. McIntosh
Mr. Benjamin C. Mizer
Ms. Angelique Marie Montano

Case: 15-40238

Mr.
Mr.
Mr.
Ms.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
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Mr.
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Ms.
Ms.
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Document: 00513054632

Leif A. Olson
William Jeffery Olson
Paul Orfanedes
Nina Perales
James Peterson
Bradley S. Phillips
Alex Potapov
Matthew E. Price
Noah Guzzo Purcell
Charles Eugene Roy
Jay A. Sekulow
Ilya Shapiro
Benjamin Gross Shatz
Jeremy W. Shweder
Clifford M. Sloan
Linda J. Smith
Karen Cassandra Tumlin
Seth Paul Waxman
Jonathan Weissglass
Dale Wilcox
Paul Reinherz Wolfson
Elizabeth Bonnie Wydra
Ernest Young

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